Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment
No.95/2018
MHCC010036012018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.95 OF 2018
(CNR NO.MHCC01-003601-2018)
IN
S. C. SUIT NO.4763 OF 2011
Suresh P. Landge, )..Applicant
In the matter between
Suresh P. Landge, )
Residing at E 36/1, Nandadeep )
Everest CHS Ltd,Shell Colony Road, )
Chembur, Mumbai. )..Plaintiff
V/S
Janardhan Narayan Funde, )
Residing at Koradgaon Fude Takali )
Taluka Pathardi Dist. Ahmednagar. )..Defendant
Appearance :
None for applicant/plaintiff and defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 14/09/2023
O R D E R
1 Instant suit is filed by applicant/plaintiff for recovery of
amount of Rs.3,28,000/- with interest, claiming that the defendant had
obtained loan from the Chembur Nagrik Bank, Chembur and had
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No.95/2018
defaulted in repayment having cordial relations. The applicant/plaintiff
provided him friendly loan to deposit the defaulted amount of bank.
The defendant agreed to repay the amount and accordingly, the
defendant issued two separate cheques, one of Rs.16,000/- and
another of Rs.3,28,000/-. He also paid Rs.15,000 in cash separately.
The cheque of Rs.3,28,000/- was returned dishonoured with remark
funds insufficient. Therefore, the applicant/plaintiff called upon the
defendant to pay the amount, but he avoided. Hence, the
applicant/plaintiff issued notice to the defendant on 13/11/2005. On
his failure to pay, applicant/plaintiff initiated a criminal proceeding
under section 138 of Negotiable Instrument Act, which was tried
before the learned Metropolitan Magistrate, 30th Court and after the
trial, the defendant was held guilty for committing an offense
punishable under Section 138 of Negotiable Instrument Act and was
sentenced to simple imprisonment for 6 months. The defendant was
also directed to pay Rs.3,28,000/- within 2 months and in default to
suffer simple imprisonment of one year. The learned Metropolitan
Magistrate passed the order of conviction on 29/01/2007. Thus, the
defendant was required to pay the amount of Rs.3,28,000/- on or
before 29/03/2007, but he did not pay. It is the contention of the
applicant/plaintiff that he is entitled to recover the amount as he has
not obeyed the order of learned Metropolitan Magistrate and prayed
for grant of decree of payment of Rs.3,28,000/- with interest at the
rate of 12% since 26/03/2010.
2 Initially the suit was filed before the Hon’ble Bombay High
Court, where the defendant had appeared and the applicant/plaintiff
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had taken out summons for judgment. Later on, the matter was
transferred to this Court in the wake of increase in pecuniary
jurisdiction of City Civil & Sessions Court, Mumbai. In consequence of
failure on the part of applicant/plaintiff to proceed with summons for
judgment, the same came to be dismissed in default on 06/07/2015.
Later on, the applicant/plaintiff took out notice of motion to restore
the summons for judgment, which was restored on 11/01/2017. After
the restoration, it was found that the summons for judgment was not
registered to the record of City Civil & Sessions Court, Mumbai.
Thereafter, it was registered as summons for judgment No.95 of 2018.
The roznama dated 18/01/2019, discloses that the summons for
judgment was served upon the defendant on 14/05/2018 and ordered
to proceed without his reply.
3 It reveals from the record that the applicant/plaintiff has
tendered his written notes of argument on 06/10/2021, since then the
advocate for applicant/plaintiff has appeared only once i.e. on
07/07/2022. The advocate for defendant remained absent. The
advocate for applicant/plaintiff remained absent continuously,
therefore, this Court has no option but to proceed to decide the suit on
the basis of record available and the written notes of argument
tendered by the applicant/plaintiff, as per the provisions of Order VII
Rule 2 of the Code of Civil Procedure (in short “CPC”).
4 On perusal of record, it reveals that the applicant/plaintiff
has not filed any original document in respect of his claim. The
photostat copies are annexed with the plaint. As per the judgment
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passed by the Hon’ble Bombay High Court in the case of Neebha
Kapoor Vs. Jayantilal Khandwala and Ors. reported in AIR 2008 SC
1117, the applicant/plaintiff must produce original documents for
obtaining the summary judgment under Order XXXVII of CPC. In the
absence of document, the applicant/plaintiff is unable to establish his
claim, however, on going through the averments of the plaint itself
shows that the defendant has issued cheque first in favour of
applicant/plaintiff on 17/01/2005, which was returned dishonoured
on 02/11/2005. Thus, applicant/plaintiff is required to file the suit
within 3 years from the date of dishonour as per the Article 24 r/w
Section 19 of the Limitation Act. However, it seems that the
applicant/plaintiff is claiming recovery of amount of Rs.3,28,000/-, on
the basis of judgment passed by the learned Metropolitan Magistrate in
criminal complaint bearing case No.13713/SS/2005. According to the
claim of applicant/plaintiff, the learned Metropolitan Magistrate has
convicted the defendant and issued directions to him to pay the
amount of the cheque i.e. Rs.3,28,000/- to the applicant/plaintiff
within 2 months as compensation. Thus, it appears that there was a
direction to pay the compensation of Rs.3,28,000/- under section
357(1)(b) of the Code of Criminal Procedure (in short “CrPC”). The
instant suit is beyond limitation for the recovery of amount under the
cheque which was dishonored on 02/11/2005.
5 So far as the suit of recovery of amount which was granted
by the learned Metropolitan Magistrate under section 357(1)(b) of
CrPC is concerned, a remedy is available to proceed against the
defendant under section 421 of CrPC. Thus, I am of the view that the
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summary suit cannot lie for the recovery of amount as the suit is
barred by limitation for the recovery of amount under the cheque and
as there is remedy provided under section 421 of CrPC to recover the
amount as compensation granted under section 357(1)(b) of CrPC.
6 Considering the fact that no original documents are filed
on record and the averments of applicant/plaintiff shows that the suit
is beyond limitation for recovery of amount under the cheque,
summons for judgment as well as suit deserves to be dismissed.
Definitely the summons for judgment and suit are devoid of merit and
deserves to be rejected. Resultantly, I proceed to pass the following
order :-
ORDER
1. Summons for Judgment No.95 of 2018 as well as S.
C. Suit No.4763 of 2011, are hereby dismissed.
2. Decree be drawn up accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 14/09/2023. C.R. No.15
Dictated on : 14/09/2023.
Transcribed on : 15/09/2023.
Signed by HHJ on : 16/09/2023.
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“Certified to be true and correct copy of the original signed order”.
16/09/2023 (Ms.Sonali Sawant)
at about 4.55 p.m. Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 14/09/2023
Order signed by Hon'ble Judge on : 16/09/2023
Order uploaded on : 16/09/2023
at about 4.55 p.m.
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