Order 1

Order Details: Other
Pdf Text: MHCC010028352018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.72 OF 2018
SUMMARY SUIT NO.1071 OF 2017
Mr. Rajinderpal Singh Randhawa
...Plaintiff.
V/s.
Mr. Ravikant Ronakchand Agarwal
....Defendant.
Appearances:
Ld. Adv. Mr. Mannadiar for Plaintiff.
Ld. Adv. Mr. Vyas for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 17th September, 2022
ORDER
1. The present Summons for Judgment is taken out by the
plaintiff for issuing Summons for Judgment. It was submitted by the
plaintiff that in the first week of August, 2015, the defendant was in
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urgent need of money and therefore, the plaintiff advanced a friendly
loan in cash to the defendant. The defendant agreed to pay the interest
at the rate of 18% per annum. On 14.08.2015, the plaintiff advanced a
friendly loan of Rs.5,00,000/ to the defendant. The defendant agreed
and undertook to execute a receipt acknowledging the receipt of said
friendly loan. However, the defendant failed to issue the receipt. On
the request of the plaintiff, the defendant issued a cheque dated
22.01.2016 equivalent to receipt acknowledging the friendly loan
amount. The said cheque on presentation was dishonoured. The
plaintiff issued a statutory demand notice dated 06.02.2016 to the
defendant. However, the defendant failed to pay the cheque amount.
The plaintiff therefore, filed the Criminal Case bearing
No.241/AA/2016. The defendant was acquitted in the said matter.
However, the plaintiff is entitled to file Civil Suit for recovery of the
friendly loan amount. The plaintiff advanced the loan amount to
defendant but the defendant failed to repay the amount and therefore,
the plaintiff filed the present suit. The defendant has filed his
appearance and had raised false defence. The defendant is not entitled
for unconditional leave and therefore, the Summons for Judgment be
issued.
2. The defendant filed his reply to the Summons for Judgment
and prayed for unconditional leave to defend. It was submitted that the
defendant had at no point of time obtained any financial loan from the
plaintiff. The defendant had handed over five blank cheques to the
father of the plaintiffs for obtaining the help from any bank or private
financer. However, the father of the plaintiff failed to help the
defendant. On the contrary, the plaintiff has misused the said cheques.
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The defendant had filed a police complaint regarding the same. The
defendant further submitted that the present suit is not maintainable.
The defendant is having a good case on merit and is therefore, entitled
for unconditional leave to defend the suit and hence the plaintiff is not
entitled for any decree and hence summons for Judgment be dismissed.
3. Heard the Learned Advocate for the plaintiff and defendant
at length. The contents are not reproduced. The Learned Advocate for
plaintiff relied upon (1) Vishnu Dutt Sharma Vs. Daya Sapra (SMT)
reported in 2009 (13) Supreme Court Cases page 729. It has been
held that there is a difference in standard of proof required in civil
proceedings from that in criminal proceedings and therefore, civil suit is
not barred even if there is acquittal in criminal proceedings. (2) B.L.
Kashyap and Sons Limited Vs. JMS Steels and Power Corporation
and another reported 2022 (3) Supreme Court Cases 294. It has
been held that “While dealing with an application seeking leave to
defend, sterner or higher conditions could be imposed.
4. As against this defendant relied upon Civil Appeal No.508
of 1976 wherein it has been held that unconditional leave to defend be
granted in the suit for recovery under Section 37 of the Code of Civil
Procedure.
5. After going through the submissions made by both the
parties, it seems that it is the case of the plaintiff that a friendly loan
was given to the defendant. The defendant had denied the receipt of
any kind of amount towards the loan. The defendant raised issues in
the suit which are triable in nature. The defendant also raised the issue
of maintainability. The defendant also raised issue that the present suit
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is not maintainable as the defendant was acquitted in the Criminal
proceedings. Considering the nature of the issues raised by the
defendant, it seems that the defendant must be given an opportunity to
raise his reasonable defence. It seems that in order to decide the matter
on merits and for fair adjudication of the matter it would be appropriate
to grant leave to defend to the defendant. The defendant had also
denied the suit transaction and therefore, the defence of the defendant
has to be taken on record. The over all facts and circumstances of the
matter shows that if the leave to defend is denied to the defendant, the
defendant will suffer serious prejudice. The defendant would be given
an opportunity to satisfy that he has substantial defence and the issues
raised by the defendant are bonafide. As per the settled preposition of
law if the defendant raises triable issues indicating a fair or bonafide
defence even though not a positively good defence he would ordinarily
be entitled for leave to defend and therefore, leave to defend is granted
to the defendant.
6. In order to secure the interest of the plaintiff and
considering the nature of the transaction it would be appropriate to
grant conditional leave to defendant to defend the suit. I, therefore,
proceed to pass the following order:
ORDER
1. Conditional leave is granted to defendant to defend the suit.
2. The defendant shall deposit an amount of Rs.2,50,000/ to be
paid to the plaintiff within 2 months from date of this order.
3. The defendant after payment of the amount of Rs.2,50,000/ will
be at liberty to file written statement on record.
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4. The Summons for Judgment No.72 of 2018 is disposed off
accordingly.
5. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 17092022 City Civil Court, Gr. MUMBAI
Dictated on : 17092022
Transcribed on : 19092022
checked on : 20092022
Signed on : 20092022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.09.2022 at 05.50 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
17.09.2022
Judgment/order signed by P.O. on 20.09.2022
Judgment/order uploaded on 20.09.2022
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