Final Order 1

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MHCC010031772019
Presented on : 19032019
Registered on : 19032019
Decided on : 18092021
Duration : Y M D
02 05 29
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.110 OF 2019
IN
COMMERCIAL SUIT NO.340 OF 2021
(SUMMARY SUIT NO.131 OF 2019)
Paridhi Rohitkumar Shah Alias ]
Paridhi Amritlal Jain ]
Through Constituted Attorney Jinesh ]
Amritlal Jain, aged 28 years, of Mumbai, ]
Indian Inhabitant, having her address at ]
204/A, Adinath Apartment, 281, Tardeo ]
Road, Mumbai400 007. ] ..Plaintiff
Versus
1. Plastomech Industries ]
A partnership firm, duly registered ]
under the provisions of the Indian ]
Partnership Act,1932 having its ]
address at C/o. Arihantmech Plast ]
Private Limited, Survey No.653/1, ]
Plot No.20, Somnath Cooperative ]
Housing Society, Somnath Road, ]
Dabhel, Nani Daman396210 ]
And also having address at ]
Laxmi Narayan Niwas, Ground Floor, ]
Opposite Anupam Cinema, Goregaon ]
(East), Mumbai400 063. ]
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2. Karan Sanghvi ]
of Mumbai, an adult, Indian ]
Inhabitant, having his address ]
at Sanghvi Sadan, 2nd floor, ]
Behind Anupam Cinema, ]
Goregaon(East), Mumbai ]
400 007. ]
3. Neeraj Kumar Gupta ]
of Mumbai, an adult, Indian ]
Inhabitant, having his address ]
at A801, Lake Primrose, Phase ]
4 Lake Homes, Powai, ]
Mumbai400 076. ]
4. Sunit Kothari ]
Both of Mumbai, an adult, ]
Indian Inhabitant, having his ]
address at Harmond Mansion, ]
4th Floor, Motibai Lane, Nana ]
Chowk, Mumbai400 007. ] ..Defendants
_________________________________________________________
Ld. Advocate Vinay Taliwal for plaintiff
Ld. Advocate Seema Hunnurkar for deft. nos.1 to 4
______________________________________________________
ORAL ORDER
(Dated this 18th day of September 2021)
1. Summons for Judgment is taken out by plaintiff
seeking decree for the sum of Rs.26,35,298.63/ with future
interest.
2. Suit is filed under Order 37 of C.P.C. on the basis of
confirmation of accounts.
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3. Briefly stated, plaintiff's case, is as under:
Defendant No.1Plastomech Industries is a
partnership firm engaged in the business of trading of Polymer
Granules. Defendant nos.2 to 4 are the partners of defendant
no.1partnership firm. In the year 2016, defendants approached
plaintiff and requested for financial help of Rs.18 lacs for the
purpose of expansion of business of trading of Polymer Granules.
Defendants also agreed to pay monthly interest @ 1.5% from the
date of advancement of loan. Plaintiff transferred an amount of
Rs.5 lacs on 03/05/2016, an amount of Rs.9 lacs on 05/05/2016
and an amount of Rs.4 lacs on 06/06/2016 in the account of
defendant no.1partnership firm by RTGS.
4. On 01/04/2017, defendant no.2, as an authorized
representative of defendant no.1partnership firm, acknowledged
and confirmed due amount of Rs.18 lacs as on 31/03/2017.
5. In April2017, plaintiff approached defendants and
demanded the due amount. But, defendants requested for time to
make the payment. Due to cordial relationship with defendants,
plaintiff granted time to repay the amount. Plaintiff contacted
defendants on several times, but, defendants failed to pay the due
amount. Therefore, plaintiff send legal notice through advocate
on 29/10/2018. The said notice was duly served on defendants,
but, defendants failed to pay the amount. Hence, suit is filed
under Order 37 of C.P.C. on the basis of confirmation of accounts.
6. Writ of summons was duly served upon the
defendants. Defendants appeared as contemplated u/o. 37 Rule
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2(3) of C.P.C. Thereafter, plaintiff has taken out Summons for
judgment. Defendants filed reply affidavit and applied for leave
to defend the suit unconditionally.
7. Defendants in their reply affidavit contend that
defendant no.4Sunit Kothari is soninlaw of plaintiff's father
Amritlal Jain. In the year 2014, defendant nos.2 to 4 decided to
start a partnership business at Will. It was agreed that all the
partners would be equally responsible for the profits and losses of
the business. After starting the partnership business, defendants
further mutually agreed to expand the business. They agreed to
invest minimum amount of Rs.12 lacs to Rs.18 lacs as an
additional capital. The said amount was agreed to be arranged by
each partner independently. Accordingly, defendant nos.2 and 3
arranged their respective shares of investment through their
independent sources. As per request of defendant no.4, plaintiff
and her father shown their willingness of giving financial
assistance to defendant no.4. On personal request of defendant
no.4, an amount of Rs.18 lacs was transferred by plaintiff to the
account of defendant no.1partnership firm. The amount so
transferred, was the share of investment of defendant no.4, in the
partnership business. Defendant no.1partnership firm never
requested plaintiff for any financial assistance.
8. Defendants further submit that they never issued any
acknowledgment towards confirmation of any amount payable by
defendants. Plaintiff is sisterinlaw of defendant no.4. Since the
amount of Rs.18 lacs was transferred to the account of defendant
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no.1, plaintiff requested defendants to give statement of balance
for taxing purpose. Believing the words of plaintiff, defendants
simply issued the statement. Plaintiff, by taking advantage of said
statement, made false claim against defendant no.1partnership
firm and it's partners. Plaintiff paid the amount of Rs.18 lacs to
defendant No.4 in the individual capacity. Defendant No.1
partnership firm and it's partners are not concerned with the
amount paid by plaintiff to defendant no.4 in personal capacity.
Plaintiff is required to sue defendant no.4 in his personal capacity
and not as a partner of defendant no.1partnership firm.
Defendants are not liable to pay suit amount. By making all these
submissions, defendants prayed for unconditional leave to defend
the suit.
9. Heard both sides.
10. It is not in dispute that plaintiff transferred the sum
of Rs.18 lacs in the account of defendant no.1partnership firm. It
is also not in dispute that defendant no.2 gave confirmation of
accounts on 01/04/2017. Said confirmation was given on behalf
of defendant no.1partnership firm. Plaintiff is claiming decree on
the basis of confirmation of accounts given by defendant no.2 on
behalf of defendant no.1partnership firm. Defendants are
disputing the claim contending that the amount was transferred
at the request of defendant no.4. The said amount was the
contribution of defendant no.4 towards capital of defendant no.1
partnership firm. Defendants further claimed that the
confirmation of accounts dated 01/04/2017 was given by
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defendants only for taxing purpose.
11. As stated above, defendants urged that they agreed
to expand the business of defendant no.1partnership firm.
Defendant Nos.2 to 4 agreed to contribute minimum amount of
Rs.12 lacs to Rs.18 lacs. It is further contended that defendant
nos.2 and 3 arranged their respective shares of investment
through their independent sources. The amount of Rs.18 lacs was
the share of investment of defendant no.4 in the partnership firm.
However, no material is filed on record to show that defendant
nos.2 to 4 agreed to expand their business by making investment
of Rs.12 lacs to Rs.18 lacs by each partner. There is no material
on record to show that defendant nos. 2 and 3 arranged their
respective shares of investment from their independent sources.
Defendants claimed that the amount of Rs.18 lacs, transferred by
plaintiff in the account of defendant no.1partnership firm, was
the share of investment of defendant no.4, but, there is no
material on record to substantiate this defence. On perusal of
reply affidavit, it is clear, as crystal, that defendants admit receipt
of an amount of Rs.18 lacs from plaintiff. They also admit the
execution of account of confirmation given by defendant no.2 on
behalf of defendant no.1partnership firm. Defendants also admit
receipt of notice given by plaintiff prior to institution of suit. But,
they failed to reply said notice. The only defence taken out by
defendants is that the amount so paid was not the financial
assistance to defendant no.1partnership firm. But, it was a
contribution of defendant No.4 in the partnership business.
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However, there is no material on record to support this
contention. From the facts discussed above, it is abundantly clear
that defendants have no defence on merits to plaintiff's claim. In
the facts and circumstances referred above, the Court would be
fully justified in allowing summons for judgment and directing
defendants to pay the suit amount. However, purely out of mercy
and to allow defendants to contest the suit on merits, conditional
leave to defend the suit can be granted to defendants. In the
result, following order:
ORDER
1. Defendants shall deposit a sum of Rs.18,00,000/
(Rs.Eighteen Lacs only) in Court within a period of 12
weeks from today. If this condition is complied with, leave
to defend the suit is granted to defendants and they
shall file Written Statement within a period of 8 weeks
from the date of deposit.
2. If aforesaid condition of the deposit is not followed by
defendants within stipulated time, plaintiff shall be at
liberty to apply for exparte decree.
3. There shall be no order as to costs.
4. S/J No.110/2019 is accordingly disposed of.
18/09/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 18/09/2021
Transcribed on : 18/09/2021
Signed on : 20/09/2021
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
20/09/21 at 04.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
18/09/2021
Judgment and order signed by P.O. 20/09/2021
Judgment/order uploaded on 20/09/2021
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