Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Received on : 18.03.2019
Registered on : 18.03.2019
Decided on : 03.09.2021
Duration : 02Y 05M 16D
EXHIBIT7
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.103 OF 2019
( CNR No.MHCC010030992019)
IN
SUMMARY SUIT NO. 925 OF 2017
( CNR No.MHCC010060212017)
MRS. RANJAN DILIP VANIGOTA ]
Age about 88 years ]
Having residential address at ]
6th floor, BWing, Balalram Street, ]
Grant Road (East), Navjeevan Circle, ]
Mumbai400 008. ]
Through constituted attorney ]
Mr. Dilip Vastimal Vanigota. ].. Plaintiff.
V/s.
MR. SUMIT N. JAIN ]
Proprietor of M/s. Future Gadgets ]
Age Not Known, ]
Having address at Shop No.1, ]
Devi Ek Veera CHS., Old Nagardas ]
Road, Andheri (East), ]
Mumbai 400 067. ]..Defendant.
Advocate Ms. Aaishwarya Teli for the plaintiff.
Advocate Mr. Sachin Raje for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 3rd SEPTEMBER, 2021
-- 1 of 8 --
2
JUDGMENT
The suit is instituted for the recovery of the amount of
Rs.3,703,319/–. The defendant appeared in response to the service of
summons. Thereafter, the plaintiff took out Summons for Judgment. It
was served on the defendants. The defendant has filed reply for the
same and has prayed for leave to defend the suit.
2. It is the case of plaintiff that, the defendant is the
proprietor of M/s Future Gadgets. In the year 2015, the defendant was
in need of finance and accordingly, approached to the husband of the
plaintiff Mr. Dileep Vanigota. Considering the difficulty and as they
both were known to each other, the plaintiff advanced loan of
Rs.50,00,000/ to the defendant by RTGS on 30/11/2015. It was a
shortterm loan and the amount of interest was 18% per annum. The
plaintiff has produced her bank statement in support of her claim. The
defendant has also issued a confirmation letter for the income tax
purpose on 30/11/2015, thereby admitting the advancement of
Rs.Rs.50,00,000/.
3. It is the case of the plaintiff that the defendant repaid the
amount of Rs.25,30,000/– between the period 27/07/2016 to
29/03/2017. The defendant is liable to pay amount of Rs. 24,70,000/–
towards the principal amount and Rs. 11,34,857/– towards the interest.
The defendant issued various cheques to the plaintiff for repayment of
the said amount. The statement is given in the plaint. When the
plaintiff deposited the cheque with her bank for payment, all the
cheques were bounced. Hence, the plaintiff issued notice on
20/04/2017 through his advocate to the defendant. The defendant
received the same. However, the defendant did not pay the amount.
-- 2 of 8 --
3
The defendant replied the said notice on 05/05/2017. He admitted the
liability towards the plaintiff, but alleged that it was a friendly loan and
also stated that plaintiff agreed to waive the balance amount. Plaintiff
issued a rejoinder on 15/05/2017.
4. The plaintiff filed a complaint in this defendant under
section 138 of the Negotiable Instruments Act. In all the above
circumstances, the plaintiff has instituted the present suit.
5. The defendant, in reply to the summons for the judgment,
has stated that the cause of action on which the present suit is instituted
is the bouncing of cheques. However, the defendant has challenged the
order of Court of Sessions dated 29/03/2019 before The Hon'ble
Bombay High Court. The defendant has further stated that he had
taken friendly loan of Rs.50,00,000/ from the plaintiff. The plaintiff
demanded cheques towards security of the said amount. The defendant
never agreed to pay any interest at the rate of 18% per annum on the
loan amount. As per the case of the defendant, it was the interest free
loan. The defendant returned the amount of Rs. 16,05,000/– during
the period from 27/07/2016 to 27/03/2017.
6. It is the case of the defendant that as he was in financial
crunch, plaintiff and defendant met on 28/03/2017 and decided to
settle the matter. The plaintiff agreed to accept amount of
Rs.9,25,000/– in one stroke to cheque No. 038169. It was the full and
final settlement. When the defendant demanded the 9 security cheques
to the plaintiff, the plaintiff gave excuses. The summons for judgment
suffers from gross latches and inordinate delay and hence it is not
maintainable.
-- 3 of 8 --
4
7. The defendant has further stated that the summary suit is
not maintainable on the said cause of action as there was no written
contract between the plaintiff and the defendant. For all the above
reasons, the defendant has prayed for unconditional leave to defend the
suit.
8. Considering the summons to judgment and replied thereto
and the documents on record, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the defendant has made out
probable defence making him entitled for
leave to defend the suit?
In the
Affirmative
2 Whether the defendant is entitled to the
unconditional leave to defend the suit?
Partly
Affirmative
3 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 AND 2:
9. It is the case of the plaintiff that defendant was acquainted
with her husband and on that basis he demanded loan amount of Rs. 50
lakhs/–. Defendant agreed to pay interest at the rate of 18% per
annum. On the other hand it is the case of defendant that he borrowed
-- 4 of 8 --
5
amount of Rs. 50 lakh/– from the plaintiff as a friendly loan and there
was no condition of payment of interest on the said amount.
Admittedly there is no documentary evidence showing the terms and
conditions of the loan. In the circumstances defendant has come out
with the case that after payment of Rs. 25,30,000/–, as per defendant
was unable to pay, there was meeting between plaintiff and defendant
and plaintiff agreed to accept amount of Rs. 9,25,000/– towards full
and final settlement of the remaining amount. These contentions are
strange in the light of the case of the defendant that it was a friendly
loan. If we consider the case of defendant of friendly loan, then it was
expected from him to pay at least Rs. 50 lakh to the plaintiff. The case
put forth by the defendant shows that plaintiff waived amount of Rs.
2,470,000/– in favour of the defendant. This doesn’t appear to be
probable.
10. However, when there is no document to show the terms
and conditions of the loan, I find it necessary to give an opportunity to
the parties to lead their evidence. There are two main questions of facts
which need to be answered by the Court in the judgment. The first one
is whether the defendant agreed to pay interest at the rate of 18% per
annum? And the second is that whether the plaintiff agreed to accept
only Rs.25,30,000/– towards the full and final settlement of the loan
transaction? Both these questions cannot be answered without looking
into oral evidence of the parties as there are no documents.
11. The defendant has also raised a question of maintainability
of the suit on the ground of delay and latches. It is further objected on
the ground that the summary suit is not maintainable as there was no
written contract.
-- 5 of 8 --
6
12. The plaintiff has produced on record a judgment of the
learned Metropolitan Magistrate, whereby the accused was convicted
Under Section 138 of the Negotiable Instruments Act in the private
complaint filed by the present plaintiff.
13. In view of the above, I have come to the conclusion that, in
the absence of written contract, defendant has made out a probable
case regarding payment of interest, right of plaintiff to seek interest and
conduct of plaintiff regarding full and final settlement of the loan
amount. However, as the defendant has admitted that he accepted
amount of Rs. 50,00,000/– from the plaintiff, it is necessary to direct
him to deposit the balance amount of Rs.24,70,000/– in the Court
within 30 days from the date of this order for making him entitled to
defend the suit. Accordingly, I answer point No. 1 in the affirmative,
point No.2 partly in the affirmative and in answer to point No. 3, I
proceed to pass following order.
O R D E R
1. Leave to defend the suit is granted to the
defendant subject to depositing the amount of
Rs.24,70,000/– in the Court within 30 days from the
date of this order.
2. If defendant fails to deposit the amount as
directed above, the suit shall proceed as if there is
no defence.
-- 6 of 8 --
7
3. The Summons for Judgment No.103 of 2019 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 03.09.2021 Gr.Mumbai.
Dictated on: 03.09.2021
Typed on : 03.09.2021
Signed on : 03.09.2021.
-- 7 of 8 --
8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.09.2021 AT 4.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
03/09/2021
Judgment/Order signed by P.O. on 03/09/2021
Judgment/Order uploaded on 04/09/2021
-- 8 of 8 --