Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 60 of 2025 .. J/1 ..
in Sum Suit 1442 of 2017
MHCC010038582025
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO.60 OF 2025
IN
SUMMARY SUIT NO.1442 OF 2017
Shri. Rajendra Vishwas Deshmukh
Age : 46 years, Service,
R/o. : 9/901, Ashok Nagar, Opposite ATI,
V. N. Purav Marg, Chunabhatti,
Mumbai – 400 019. ...Plaintiff.
Versus
1. M/s. Arrows Dynamic Comtrade Pvt. Ltd.
Having office at A-27, Sarmangal CHS Ltd.,
Priyalok Park, Kanjurmarg, Bhandup (E),
Mumbai – 400 042.
2. Arjun Gajanan Sawant.
3. Mrs. Vaidehi Arjun Sawant.
(Both Nos.2 and 3 are Managing Directors and
residing at 702, Mahaveer Imperial Complex,
Bhandup (E), Mumbai – 400 042.
...Defendants.
Appearances:
Adv. Arvind Taral For plaintiff.
None For defendant.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATED : 1st December, 2025
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SJ 60 of 2025 .. J/2 ..
in Sum Suit 1442 of 2017
ORDER
The suit is filed for recovery of an amount of
Rs.89,10,000/- including principal amount of Rs.50,00,000/- with
interest of 24% p.a based on cheques.
2. It is the case of the plaintiff that;
Defendant Nos.2 and 3 approached him and informed that
they are registered brokers in trading of gold and silver and induced to
invest money with promise of high returns. Believing in the promise, he
his wife and mother invested Rs.50,00,000/- by cheques from 2012 to
2014. Initially, defendants gave some profits, but thereafter made delay
in payment and later on stopped giving profits. On repeated requests for
payment, on 05.05.2017, the defendants executed an MOU in the name
of defendant’s sister concern. When defendant Nos.2 and 3 felt that
plaintiff will not give the consent to reinvest the amount and when the
amount was demanded they issued four cheques towards refund of the
principal amount.
3. When the cheques were deposited for encashment, it
returned with remark ‘funds insufficient’ by bank memo dated
06.07.2017. Inspite of the fact of dishonoured brought to the notice,
defendants failed to pay the amount. On 14.07.2017, demand notice
u/Sec.138 of the NI Act was issued. Inspite of receipt of the same,
defendant failed to pay the amount. A complaint u/Sec. 138 was filed.
By signing the MOU and issuing cheques, defendants admitted the
liability. Hence, suit for an amount of Rs.89,10,000/- including principal
amount of Rs.50,00,000/- with 24% p.a was filed. In the said suit, the
present SJ is filed with prayer to make it absolute.
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SJ 60 of 2025 .. J/3 ..
in Sum Suit 1442 of 2017
4. Though the present Summons for Judgment was filed on
31.07.2017 with supporting affidavit. It was served on the defendants
and they filed Notice of Motion No.1085/2017 as reply/leave to defend.
Hence, by order dated 07.03.2025, the SJ was again re-registered and
was numbered as SJ No.60/2025. After re-registering, direction was
given to serve it on the defendants. On 24.04.2025, service affidavit was
filed on record shown it was served on the advocate of defendants.
5. The defendants denied the entire contents of the complaint
as well as the SJ and challenged the suit as not maintainable under
Order XXXVII of the C.P.C. It is their specific defence that plaintiff was
one of their clients who visited their office. Plaintiff’s elder brother Mr.
Kiran Deshmukh. The plaintiff showed interest in investing amount in
the propriety firm Arose Dynamic Enterprises. On 12.12.2012, the
plaintiff deposited Rs.6,00,000/- by cheque, Rs.3,00,000/- by cheque
from account of his wife Trupti R. Deshmukh. They gave regular return
of 48% p.a. The father of plaintiff Vishwas Deshmukh invested
Rs.10,00,000/- in the name of his wife Sumati, step-mother of plaintiff.
Again, Mr. Vishwas Deshmukh invested Rs.20,00,000/-. The father of
defendant passed away during Diwali and plaintiff converted the
account of Mr. Vishwas Deshmukh into a joint account. The plaintiff
invested Rs.17,00,000/- from his account and Rs.3,00,000/- from the
account of his wife, whereas, the rest amount of Rs.30,00,000/- was
invested by father of plaintiff. The MOU was executed in good faith.
However, later on, mother and brother of plaintiff objected the
execution of MOU. An amount of Rs.30,00,000/- is due and payable to
mother of plaintiff. Arose Dynamic Concrete Private Limited and Arose
Dynamic Securities LLP were registered in 2015, therefore, have
nothing to do with the MOU dated 05.05.2017.
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SJ 60 of 2025 .. J/4 ..
in Sum Suit 1442 of 2017
6. The defendant No.2 had given plaintiff returns in cash
apart from return by cheque during the illness of father of plaintiff.
Grave injustice and irreparable loss and hardship will be caused if leave
to defend the suit is not granted. To bring on record the correct fact and
considering good case on merit and chance of succeeding in the matter,
an unconditional leave to defend the suit is prayed.
7. Heard Adv. Taral for plaintiff. No any argument advanced
by Advocate of defendant and order to that effect was passed on
27.11.2025. According to Adv. Taral, defendants in their leave to defend
categorically admitted in leave to defend amount invested by plaintiff
and his relatives from time to time. Even defendants in para 9 (a) to (f)
admitted execution of MOU dated 05.05.2017. Therefore, according to
Adv. Taral, the admission in the pleading itself established the case of
the plaintiff regarding the amount invested, failure on the part of
defendants to repay it and the cheques issued bounced leading to filing
of the suit. Therefore, according to Adv. Taral, defendants are having no
any grounds to grant them conditional or unconditional leave to defend
as no triable issues are raised. Hence, prayed for making the SJ
absolute.
8. The plaintiff’s case is that, he alongwith his family
members invested an amount of Rs.50,00,000/-, however, defendants
failed to return the same nor the profit. The statement of account of
plaintiff and his wife shows amount deposited from time to time with
defendants. The defendants in their leave to defend in para 9 (a) to (f)
categorically admitted about it. As regards non-payment of the amount
and execution of MOU, in para (g) of leave to defend defendant
admitted the execution of MOU. However, took defence of return of part
amount in cash and by cheque during the illness of father of plaintiff.
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SJ 60 of 2025 .. J/5 ..
in Sum Suit 1442 of 2017
Whereas, in para 9 (h) defendants in clear and unequivocal terms
admitted an amount of Rs.30,00,000/ is due and payable to mother of
plaintiff. If these admissions are taken into consideration, there is clear
cut admission of the outstanding amount, though the entire amount of
Rs.50,00,000/- is not admitted but Rs.30,00,000/- is admitted.
9. The plaintiff has filed on record certified copies of the four
cheques as the originals are in the Court of Judicial Magistrate First
Class, 59th Court, Kurla, Mumbai. The amount of all the four cheques is
Rs.81,00,000/- and the same are signed by the defendant No.2 for
Arose Dynamic Securities LLP in favour of plaintiff. As the cheques got
dishonoured, a complaint u/Sec.138 of NI Act is filed. Thus, the bank
statement, MOU, certified copies of cheques and the admissions given in
leave to defend at this juncture prove that an amount of Rs.50,00,00/-
was deposited by plaintiff with defendants from time to time. The
record further reveals neither the principal amount nor the profit was
shared by the defendants as claimed and the cheques issued were
dishonoured.
10. If that being so, then question arise whether defendants
have raised triable issues indicating they have fair and reasonable
defence to grant them conditional or unconditional leave to defend the
suit. On this point useful reference to judgment of
IDBI TRUSTEESHIP
SERVICES LIMITED VS HUBTOWN LTD (2017) 1 SCC 568, can be
made wherein the Hon’ble Apex Court observed as follows:
17.1 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.
17.2 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
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SJ 60 of 2025 .. J/6 ..
in Sum Suit 1442 of 2017
ordinarily entitled to unconditional leave to defend.
17.3 Even if the defendant raises triable issues, if a doubt is left
with the trial Judge about the defendant's good faith, or the
genuininess 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 expenditious 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.
17.4 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.
17.5 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.
11. If the proposition of law laid down in
IDBI (supra) more
particularly observation in 17.5 which is again reproduced, “
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” and the facts of the present case in hand
are taken into consideration and my detail observation that defendants
in their leave to defend in para 9 (a) to (f) categorically admitted about
receiving the amount from plaintiff. Further observing about execution
of MOU which is admitted in para (g). Therefore, in view of the clear
admission, I am of the view that no any triable issues are made out by
the defendants to grant them an unconditional or conditional leave to
defend the suit.
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in Sum Suit 1442 of 2017
12. In view of the above discussion, the plaintiff is entitled for
the prayer made in the summons for judgment. Hence, the plaintiff is
entitled for recovery of an amount of Rs.50,00,000/- from defendants.
As regards the rate of interest, I am of the view that though MOU rate
of interest is 36% p.a, but claimed 24% p.a, however, I am of the view
that interest @ 12% p.a on the principal amount of Rs.50,00,000/- from
the date of filing of the suit till realization would be reasonable rate of
interest. In the result, I proceed to pass following order:-
: O R D E R :
1. The Summons for Judgment No.60 of 2025 in Summary Suit
No.1442 of 2017 is made absolute in terms of prayer clause (a).
2. The Summary Suit No.1442 of 2017 is decreed with costs.
3. The defendants are directed to pay to plaintiff an amount of
Rs.89,10,000/- with 12% p.a on the principal amount of
Rs.50,00,000 /- from the date of filing of suit till realization.
4. The NM No.1085/2018 filed by defendants for leave to defend is
dismissed.
5. The defendants shall bear the costs of the suit.
6. The Court Fees be refunded as per the rules.
7. The decree be drawn up accordingly.
(N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 01.12.2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 01-12-2025
Transcribed on : 02-12-2025
checked on : 02-12-2025 (N. B. Lavte )
Signed on : 02-12-2025 Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI.
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in Sum Suit 1442 of 2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.12.2025 at 04.25 p.m.
UPLOAD DATE AND TIME
(MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
01.12.2025
Judgment/order signed by P.O. on 02.12.2025
Judgment/order uploaded on 02.12.2025
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