Final Order 1

Order Details: Other
Pdf Text: Summons for Judgment 76 of 2018 ..1.. in Sum Suit No.22/2018
MHCC010029342018 Presented on : 27/02/2018
Registered on : 27/02/2028
Decided on : 30/07/2026
Duration : 08Y: 05M: 03D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.76 OF 2018
IN
SUMMARY SUIT NO.22 OF 2018
Priyanka Kabra
An adult of Mumbai, Indian Inhabitant residing
at 54-B, Sukhmani Building, Bomanji Petit Road,
Warden Road, Mumbai-400 036 and also at 312,
2nd floor, Kalbadevi Road, Mumbai 400002,
through her Power of Attorney Holder,
Mr. Lalit Kumar Shriniwas Kabra
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...Plaintiff
Versus
1. Praful Nanji Satra
an adult of Mumbai Indian Inhabitant, having his
office at Dev Plaza, 2nd floor, Opp. Andheri Fire
Station, S.V. Road, Andheri (West),
Mumbai-400 058 and residing at 701, Rehana
Heights, 6, Chapal Lane, Santacruz (West),
Mumbai-400 054.
2. Minaxi Praful Satra
an adult of Mumbai Indian Inhabitant, having her
office at Dev Plaza, 2nd floor, Opp. Andheri Fire
Station, S.V. Road, Andheri (West),
Mumbai-400 058 and residing at 701, Rehana
Heights, 6, Chapal Lane, Santacruz (West),
Mumbai-400 054.
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Appearance :-
Ld. Adv. Kainaz Irani i/b. Das Associates for plaintiff.
Ld. Adv. Archit Shah i/b. M/s. Parinam Law Associates for Defendants.
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Summons for Judgment 76 of 2018 ..2.. in Sum Suit No.22/2018
CORAM : HHJ P. B. LOKHANDE (C.R.No.82)
DATE : 30/07/2026
O R D E R
The plaintiff filed this suit for recovery. In the said suit,
notice of Summons for Judgment is served upon the Defendants.
Thereafter, the Defendants filed reply to the Summons for Judgment
and leave to defend.
2. The plaintiff filed this suit through POA her father for
recovery against the defendant of Rs.6,02,750/- along with interest at
the rate of 18% per annum. It is stated that, defendants approached
for financial assistance of their personal use of Rs.5,00,000/-. The
plaintiff issued the amount of Rs.5,00,000/- vide cheque No.000522
dated 05/08/2016 drawn on Bank of India, Branch Vile Parle. The
defendants have not deposited the said cheque. However, defendants
accepted the friendly loan and acknowledged the same by Bill of
Exchange dated 05/05/2016 due on 05/08/2016. The defendants
failed to repay the friendly loan. Therefore, plaintiff issued demand
notice dated 25/09/2017 to the defendants, they failed to repay the
dues. The plaintiff claiming decree of Rs.6,02,750/- against the
Defendants along-with interest @18% p.a.
3. The Defendants filed reply contending that, the Bill of
Exchange alleged by the plaintiff is insufficiently stamped and hit by
section 13 (b) (i) of Indian Stamp Act. Without prejudice to the
contention denied the alleged amount finance by the plaintiff.
Moreover, the plaintiff claiming 18% per annum interest does not
disclose on the alleged Bill of Exchange. In view of above facts and
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Summons for Judgment 76 of 2018 ..3.. in Sum Suit No.22/2018
circumstances, the Defendants be allowed an unconditional leave to
defend this Suit.
4. Heard the both counsel at length. Perused the plaint,
Summons for Judgment, reply, documents placed on record by both the
sides.
5. In view of above, I deemed necessary to refer the following
case laws. IDBI Trusteeship Services Limited Vs. Hubtown Limited,
(2017) 1 SCC 568. Wherein it is held and observed in para 18-
Accordingly, the principles stated in paragraph 8 of Mechelec’s case will
now stand superseded, given the amendment of O.XXXVII R.3, and the
binding decision of four judges in Milkhiram’s case, as follows:
If the defendant satisfies the Court that he has a
substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign
judgment, and the defendant is entitled to unconditional
leave to defend the suit;
If the defendant raises triable issues indicating that he
has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled to
sign judgment, and the defendant is ordinarily entitled
to unconditional leave to defend;
Even if the defendant raises triable issues, if a doubt is
left with the trial judge about the defendant’s good faith,
or the genuineness of the triable issues, the trial judge
may impose conditions both as to time or mode of trial,
as well as payment into court or furnishing security.
Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial
causes is not defeated. Care must also be taken to see
that such triable issues are not shut out by unduly severe
orders as to deposit or security;
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Summons for Judgment 76 of 2018 ..4.. in Sum Suit No.22/2018
If the Defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to
time or mode of trial, as well as payment into court, or
furnishing security. As such a defence does not raise
triable issues, conditions as to deposit or security or both
can extend to the entire principal sum together with
such interest as the court feels the justice of the case
requires.
If the Defendant has no substantial defence and/or
raises no genuine triable issues, and the court finds such
defence to be frivolous or vexatious, then leave to
defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith;
If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the
defendant in court.”
6. In view of above, ratio of the case laws referred, now it is
to be seen the pleadings and reply of the defendants. In short, the
plaintiff pleading shows that, she has given the cheque of Rs.5,00,000/-
drawn on Bank of India dated 05/08/2016 as a friendly loan to the
defendants. It is also pleaded that, said cheque is not deposited by the
defendants. Nothing is brought on record to show that, the cheque was
issued to the defendants by the plaintiff. May it be, it is also pleaded by
the plaintiff that, the defendants acknowledged the friendly loan by
executing Bill of Exchange dated 05/05/2016. I have gone through the
said Bill of Exchange, wherein it is signed by defendant No.1, however,
defendant No.2’s signature is on the left corner of the said Bill of
Exchange vertically and not on the revenue stamp affixed. Further,
there is no any details to show that, the cheque was issued to the
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Summons for Judgment 76 of 2018 ..5.. in Sum Suit No.22/2018
defendants as a friendly loan, it was not deposited by the defendants, it
was returned to the plaintiff, thereafter the friendly loan in cash was
given to the defendants except the Bill of Exchange filed on record as
discussed above.
7. In my view, denial by the plaintiff of cash friendly loan and
above deficiencies over the Bill of Exchange, that too the rate of
interest @ 18% per annum are disputed. In this background, as per
the ratio of the above referred Judgment (IDBI Trusteeship), I am of
the view that, the Defendants have made out probable triable issue. In
this circumstances, unconditional leave to defend the suit is liable to be
allowed. Accordingly, I proceed to pass the following order:-
ORDER
1. Summons for Judgment No.76 of 2018 in Summary
Suit No.22 of 2018 is hereby disposed as under :-
2. Unconditional leave is granted to the defendants to
defend this suit and the Defendants shall file
written statement within 30 days from the date of
order.
3. Summons for Judgment No.76 of 2018 is disposed of
accordingly.
(Order dictated and pronounced in open Court)
(P. B. Lokhande)
Adhoc Judge,
City Civil & Sessions Court,
Mazgaon, Mumbai,
Court No.82
Dated : 30/07/2026
Dictated and typed on : 30/07/2026.
Signed by HHJ on : 30/07/2026.
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Summons for Judgment 76 of 2018 ..6.. in Sum Suit No.22/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Mrs. V. V. Malgaonkar
Name of Stenographer30/07/2026 At about 02.00
p.m.
Name of the Judge (With C.R. No.) HHJ Pramod B. Lokhande
(COURT ROOM NO.82)
Date of Pronouncement of
JUDGMENT / ORDER
30/07/2026
JUDGMENT / ORDER signed by
P.O. on
30/07/2026
JUDGMENT / ORDER uploaded on 30/07/2026
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