Final Order 1

Order Details: Other
Pdf Text: MHCC010030752018 Presented on 03/03/2018
Registered on 03/03/2018
Decided on 30/01/2025
Duration 06Y: 10M: 27D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 82 OF 2018
IN
SUMMARY SUIT NO. 656 of 2017
Juharmal Punamchand Shah (Jain) ]
an adult, aged 76 years ]
residing at 22/24, 2nd Floor, ]
Singapore Building, Vithalwadi, ]
Champa Gali X Lane, Mumbai-400 002 ]
through his constituted attorney ]
Shru Dilipkumar Juharmal Shah ]
aged 46 years. ]...Plaintiff
Versus
Mrs. Sushilaben Sureshkumar Shah ]
an adult aged 66 years ]
residing at 408, 4th Floor, Saraf Mansion ]
Building No.32, Princess Street, ]
Princess Co-op Housing Society, ]
Mumbai-400 002. ]...Defendant
Appearance:-
Ld. advocate Mr. Ramesh Jain for plaintiff.
Ld. advocate Mr. Roshan Bamane for defendant.
-- 1 of 5 --
2 SJ No.82/2018 in
Sum Su No.656/2017
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 30/01/2025.
ORDER
( Dictated and pronounced in open Court)
01] Plaintiff has filed summons for judgment against
defendant. Defendant has filed affidavit in reply to the summons for
judgment and resisted it and prayed for dismissal of summons for
judgment.
02] As per the plaintiff, he has filed present suit as a Power of
Attorney of Mr. Juharmal Punamchand Shah (Jain). Plaintiff advanced
an amount of Rs. 2,00,000/- on 02/04/2014 by cheque to defendant.
Further, defendant agreed to repay said amount with interest at the rate
of 12% p.a. Plaintiff to support his contention has filed photocopy of
Bank Passbook. It is his further contention that defendant failed and
neglected to repay the said amount. Therefore, he issued legal notice
dated 18/11/2016 which is received by the defendant, however, she
failed to repay the said amount. Therefore, plaintiff is entitled for
principal amount with interest from defendant. It is further submitted
that defendant has not raised any substantial defence or triable issue.
Therefore defendant is not entitled for leave to defend the suit. Hence,
summons for judgment may be allowed.
03] On the other hand, it is submitted on behalf of defendant
that present suit is not maintainable under Order 37, Rule 2 of Civil
Procedure Code as there is no written contract between the plaintiff and
defendant. The plaintiff has filed suit merely on the basis of photocopy
of his bank pass book. There is no agreement in respect to repayment of
alleged amount with interest at the rate of 12% p.a. Even, POA filed by
-- 2 of 5 --
3 SJ No.82/2018 in
Sum Su No.656/2017
the plaintiff is not properly executed. The plaintiff is a Money Lender
however, he has not filed any documents in support of said contention.
Defendant has neither approached the plaintiff nor plaintiff has
advanced an amount of Rs. 2,00,000/- by cheques as contended. The
defendant has not admitted any liability. Hence, defendant is entitled
for unconditional leave to defend the suit. Hence, summons for
judgment may be dismissed with costs.
04] Perused summons for judgment, reply by defendant and
documents filed by the plaintiff. Heard both the parties. It is the
contention of the plaintiff that he has advanced an amount of
Rs. 2,00,000/- by cheque to the defendant on 02/04/2014. Further, in
order to support his contention, he has filed photocopy of his Bank Pass
Book vide List Exh. 6/2. It is pertinent to note that plaintiff has not filed
original Pass Book on record. In view of settled position as laid down in
Neebha Kapoor Vs. Jayantilal Khandwala and others, AIR 2008 SC 1117
wherein, Hon'ble Apex Court has observed that, '
at the time of hearing
summons for judgment, plaintiff has to file original documents.'
Therefore, the photocopy of passbook cannot be considered at this
stage.
05] Further, it is the contention of plaintiff that as defendant
has failed to repay the said amount he has issued notice dated
18/11/2016 to defendant by RPAD. The plaintiff to support his
contention has filed office copy of notice along with original postal
receipt and original Acknowledged card on record vide list Exh. 6/3 and
6/4. On perusing said documents, it appears that said notice is received
by defendant however, there is nothing on record to show that
defendant has replied to said notice.
-- 3 of 5 --
4 SJ No.82/2018 in
Sum Su No.656/2017
06] It is pertinent to note that plaintiff has not filed any written
agreement executed between plaintiff and defendant to show that
defendant has borrowed an amount of Rs. 2,00,000/- from plaintiff and
agreed to repay with interest @ 12% p.a. Therefore, the plaintiff has to
prove whether present suit is maintainable under Order 37, Rule 2 of
C.P.C. The defendant has raised issue that plaintiff is a Money Lender.
The defendant has to prove the said fact by adducing evidence on
record. Defendant has not admitted any liability. Thus, it appears that
defendant has raised substantial defence that suit is not maintainable as
there is no written agreement and triable issues that plaintiff is money
lender. It needs adjudication and party has to lead evidence. Even,
plaintiff has not filed all original document on record. Therefore, I am
of the view that defendant is entitled to unconditional leave to defend
the suit. Hence, I proceed to pass following order :-
ORDER
1) Summons for judgment No.82/2018 in Summary Suit
No. 656/2017 is disposed off as follows:
(a) Defendant is granted unconditional Leave to defend the suit
and directed to file written statement on or before next date.
2) No order to costs.
3) Summons for judgment No.82/2018 is disposed off
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 30/01/2025 Court Room No.81
Dictated on : 30/01/2025.
Corrected & signed on :31/01/2025.
-- 4 of 5 --
5 SJ No.82/2018 in
Sum Su No.656/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
31/01/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 30/01/2025
JUDGMENT/ORDER signed by P. O. on 31/01/2025
JUDGMENT/ORDER uploaded on 31/01/2025
-- 5 of 5 --