Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1011/2020 in Comm. Suit No. 72/19. 1 Order.
MHCC010028202020
Presented on : 06-03-2020
Registered on : 06-03-2020
Decided on : 05-02-2021
Duration : 0 years, 10 months, 30 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1011 OF 2020
IN
COMMERCIAL SUIT NO. 72 OF 2019
Anil Vishanji Dedhia ...Plaintiff
Versus
M/s. Klaus Waren Fixtures Pvt. Ltd. ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 5th FEBRUARY, 2021.
Ms. Preeti Gada, Advocate for Plaintiff.
Mr. Nahush Shah, Advocate for Defendant.
ORDER
This is a motion taken out by plaintiff to substitute Issue
No.2. In view of material proposition by plaintiff and denials by the
defendant, my learned Predecessor has framed the issues vide Exh.8.
For sake of convenience, Issue No.2 is reproduced as follows :
“2. Whether the plaintiff proves that on behalf of
the defendant its Director Mr. Deepak Ghosar
executed demand promissory note/Bills of Exchange
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N/m No. 1011/2020 in Comm. Suit No. 72/19. 2 Order.
on 24/03/2015 ?”
2. Learned Adv. Preeti Gada for plaintiff submits that on
perusal of plaint, it is the case of plaintiff that in view of RTGS dated
24/03/2015, a friendly loan of Rs.50,00,000/- has been transferred to
the account of defendant company by RTGS. In support to the said
transaction, defendant has executed a promissory note and handed over
a cheque for its repayment.
3. It is added by learned Adv. Gada that there is no specific
name of the signatory mentioned by the plaintiff, therefore, no such
burden can be imposed on the plaintiff to prove the name of signatory
i.e. director Mr. Deepak Ghosar. It is prayed to substitute the said issue
as follows :
“Whether the Plaintiff proves that the Defendant
has executed a demand promissory note and
received a sum of Rs.50,00,000/- from the
plaintiff ?”
4. Perused reply submitted by defendant. Learned Adv.
Nahush Shah for defendant submits that issue is rightly framed by this
Court. It is the burden on plaintiff to prove the signatory and authority
of the person to sign the impugned cheque and promissory note. It is
requested to peruse notice issued by the plaintiff dated 30/01/2018
addressed to the defendant company and its four directors. It is
contended that defendant is a legal entity and someone has to sign on
behalf of defendant. Therefore, it is submitted that it is the duty of the
plaintiff to prove that who has signed the cheque and promissory note.
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N/m No. 1011/2020 in Comm. Suit No. 72/19. 3 Order.
5. It is not disputed that defendant is a private limited
company. Being legal entity, it is necessary that some natural person
has to act on behalf of the company. The notice issued by the plaintiff
dated 30/01/2018 for the offence under Section 138 of N.I. Act and
some proceeding before the Court of Metropolitan Magistrate is not
disputed.
6. It is necessary to note, in view of order 14 Rule 5 of the
CPC, issues can be amended /struck out at any time.
REASONS
7. Perused written statement submitted by defendant vide
Exh.7. In para no.7 each and every contention of the plaintiff has been
denied in general. However, it is not specifically denied that no amount
as narrated in para 2 of the plaint by RTGS dated 24/03/2015 has been
received in the account of defendant company.
8. In para no.5 of the written statement vide Exh.7, it is
averred that at the relevant time on 16th and 18th January, 2018, then
director Mr. Deepak Ghosar, signatory of the cheque was not authorized
to put signature on behalf of the company. Therefore, it is the
contention of defendant that impugned transaction may be the personal
loan on behalf of the plaintiff to Mr. Deepak Ghosar. In short, to repay
such loan is not the responsibility of the defendant company.
9. Upon query raised by the Court, learned Adv. Nahush Shah
for defendant company submits that defendant company is disputing
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N/m No. 1011/2020 in Comm. Suit No. 72/19. 4 Order.
about receipt of any payment from the account of the plaintiff to the
account of defendant by RTGS, more specifically as mentioned in para 2
of the plaint. Considering aforesaid submission advanced on behalf of
defendant and on perusal of written statement vide Exh.7, it is
necessary to note transfer of the payment from the account of plaintiff
to the account of defendant company is disputed. Therefore, the thing
in personal knowledge of defendant require to be proved by the
defendant in consonance with burden placed on the plaintiff in Issue
No.1.
10. It is material to note, to the extent of signatory of
promissory note dated 24/03/2015, no specific name is mentioned by
the plaintiff. Therefore, there is substance in the submission of the
plaintiff. Accordingly, motion is allowed in view of following order :
- ORDER -
1. Notice of Motion No. 1011/2020 is made absolute as per
prayer clause (a).
2. Issue No.2 be substituted as prayed.
3. Following issues are added vide Exh.8 as Issue No.3(a) and
3(b) i.e.
3(a). Whether defendant proves that no amount received in the
account of defendant company by RTGS of Rs.50,00,000/-
dated 24/03/2015 as mentioned in the para no.2 of the
plaint ?
3(b). Whether defendant proves that as mentioned in para no.5
and 14 of written statement, Mr. Deepak Ghosar had no
authority to sign on the documents on behalf of defendant
company ?
4. N/m No. 1011/2020 is disposed off accordingly.
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N/m No. 1011/2020 in Comm. Suit No. 72/19. 5 Order.
(NOTE :- Issues are on record, parties may submit list of
witness and schedule of hearing, r/on 02/03/2021.)
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 05/02/2021. Mumbai.
1. Dictated on : 05/02/2021.
2. Transcribed on : 09/02/2021.
3. Signed on : 09/02/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/02/2021. 12.48 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 05/02/2021.
Judgment/Order signed by P.O. on 09/02/2021.
Judgment/Order uploaded on 10/02/2021.
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