Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.97/2018
MHCC010037182018 Presented on : 19/03/2018
Registered on : 19/03/2018
Decided on : 05/09/2024
Duration : 06Y 05M 18D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.97 OF 2018
(CNR NO.MHCC01-003718-2018)
IN
SUMMARY SUIT NO.718 OF 2017
Rajkumar Mohansing Bajaj, Adult, Indian
Inhabitant of Bombay, carrying on business in the
name and style of M/s. PRIDE INVESTMENTS, a
proprietary concern as it Sole Proprietor at 602F,
Neelkanth, 98, Marine Drive, Mumbai – 400 002.
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Versus
1. Milestone Interactive Private Limited, a Company
Registered under the Companies Act, 1956,
carrying on business at 702, Supreme Chambers
Off. Veera Desai Road, Andheri (West),
Mumbai – 400 053 and at Windermere, Bldg.
No.1B/125, Near Oshiwara Police Station, New
Link Road, Andheri (West), Mumbai-400 053 and
now at Gala No.106, Building No.11, 1st Floor,
Arihant Commercial Complex, Village Purna
Bhiwandi, Thane, Maharashtra – 421 302.
2. Jayont R. Sharma, Adult, Indian Inhabitant of
Bombay, carrying on business and residing at
Windermere, Building No.1B/125, Near Oshiwara
Police Station, New Link Road, Andheri (West),
Mumbai-400 053, and now at Gala No.106,
Building No.11, 1st floor, Arihant Commercial
Complex, Village Purna Bhiwandi, Thane,
Maharashtra – 421 302.
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..2.. Summons for Judgment No.97/2018
3. Manisha J. Sharma, Adult, Indian Inhabitant of
Bombay, carrying on business and residing at
Windermere, Building No.1B/125, Near Oshiwara
Police Station, New Link Road, Andheri (West),
Mumbai-400 053, and now at Gala No.106,
Building No.11, 1st floor, Arihant Commercial
Complex, Village Purna Bhiwandi, Thane,
Maharashtra – 421 302.
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Appearance :-
Learned Advocate Kavita Lalwani for plaintiff.
Learned Advocate Sushant Murthy for defendant Nos.2 and 3.
(Absent
on the date of order.)
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 05/09/2024.
ORDER
1 Plaintiff has filed this suit for recovery of amount
contending that defendant No.1 drew a demand bill of exchange of
Rs.8,00,000/- and defendant Nos.2 and 3 have accepted the said bill of
exchange which is drawn on 04/09/2014. Plaintiff has paid an advance
amount of Rs.8,00,000/- to defendants by RTGS and defendants have
paid interest after deducting TDS. Thereafter, defendants have made
part payment of Rs.1,00,000/- each totaling Rs.3,00,000/- on
03/10/2014, 03/11/2014 and 03/12/2014 and agreed that they will
repay remaining Rs.5,00,000/- within short time. Defendants pleaded
financial difficulty and sought extension of time for repayment of
amount and paid interest on 13/02/2015 of Rs.4,550/-. Thereafter,
defendants issued cheque of Rs.1,00,000/- each totaling Rs.3,00,000/-
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..3.. Summons for Judgment No.97/2018
on 03/03/2015 towards repayment, which were dishonoured on
presentation for insufficient funds. Plaintiff presented the said bill of
exchange for balance payment of Rs.5,00,000/- to defendants, but they
failed to make payment of Rs.5,00,000/- alongwith interest.
Consequently, plaintiff filed instant suit for recovery of amount of
Rs.5,00,000/- alongwith interest and calculated the claim to
Rs.6,92,500/-.
2 In response to the writ of summons, defendant Nos.1 to 3
appeared and tendered their vakalatnama, thereafter, plaintiff took out
instant summons for judgment and served upon them. Defendant Nos.2
and 3 appeared and resisted the contention of plaintiff in summons for
judgment. Defendant No.1 did not appear. It is the contention of
defendant Nos.2 and 3 that the suit is not maintainable as plaintiff is in
money lending business. Further they took plea that bill of exchange is
not properly stamped and it is not presented to them for payment. They
further contended that defendant No.1 went into winding up as per
order of the Hon’ble High Court. The defendant No.1 has undergone
liquidation, therefore, suit cannot be proceeded against them as per the
provisions of Companies Act. They further contended that they have
signed the bill of exchange in capacity of director of company at the
sole insistence of plaintiff and prayed for rejection of summons for
judgment and grant of unconditional leave. Plaintiff rejoined to the
reply and denied the contention of defendant Nos.2 and 3 and prayed
for rejection of their request for grant of unconditional leave.
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..4.. Summons for Judgment No.97/2018
3 Heard rival parties at length. Plaintiff as well as defendant
Nos.2 and 3 tendered written notes of argument in addition to oral
submissions.
4 It is not disputed to the plaintiff that defendant No.1
company is under liquidation and winding up proceeding is in progress.
It is contention of defendant Nos.2 and 3 that present suit is not
maintainable as plaintiff is in money lending business without license.
Further, as per the provisions of Maharashtra Money-Lending
(Regulation) Act, no decree can be passed, but it is incumbent on the
defendants to establish that plaintiff is in money lending business as per
the guidelines mentioned in case of Hon'ble Bombay High Court in the
case of Mahesh P. Raheja and others Vs. Base Industries Group and
others passed in Chamber summons No.488 of 2018 in Comm
Execution Application No. 63 of 2017. Therefore, at the time of
deciding summons for judgment these objections cannot be taken into
consideration.
5 Defendant Nos.2 and 3 have vehemently argued that the
suit is not maintainable as they are only signatory as director of the
company, but on perusal of bill of exchange it reveals that defendants
have signed as acceptor of the bill of exchange besides signatory as
director of bill of exchange by defendant No.2. Plaintiff is relying on the
judgment passed by Hon’ble Supreme Court in case of Ashok Mahansing
Bajaj H.U.F. Vs. Elegant Pharmaceuticals Ltd. and others reported in
2000(3)BOMCR169. He further submitted that he do not want to
proceed against defendant No.1 company which is winding up and
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..5.. Summons for Judgment No.97/2018
relied on the cited case. I have gone through the cited case, alike the
case in hand in the cited case, defendant No.1 was declared as sick
company and other defendants have signed the document as acceptor
and guarantor and having considered all the relevant provisions, the
Hon’ble Lordship has held that proceeding cannot be continued against
defendant No.1 company, but other defendants being acceptor of bill of
exchange are independently liable as principal debtor under Section 37
of Negotiable Instrument Act. Thus, following observations and the
order of Hon’ble Supreme Court in cited case Ashok Mahansing supra, I
am of the view that defendant No.2 and 3 being acceptor of bill of
exchange are independently liable as principal debtor. It is to note that
they have admitted that they have signed the bill of exchange, which
clearly shows that they have signed as acceptor of the bill of exchange,
therefore, they cannot deny their liability to pay the balance amount
under the bill of exchange.
6 It is vehemently argued by the learned advocate for
defendant Nos.2 and 3 that there is discrimination of loan terminology
and he has relied on the judgment passed by Hon’ble High Court in the
case Fauzan Shaikh Vs. State of Maharashtra passed in Criminal Public
Interest Litigation St. No.41 of 2019, I have gone through the cited case,
it is regarding the declaration of provisions of section 2(13) of
Negotiable Instrument Act, as ultravirus and in the cited case, the issue
which was discussed and answered which is not applicable to the
present case at the stage of deciding summons for judgment. Hence, I
am of the view that cited case will not help to the defendants.
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..6.. Summons for Judgment No.97/2018
7 Defendant Nos.2 and 3 have vehemently argued that they
have excellent case on merit and contended that the agreement is not
enforceable. The bill of exchange is having no sufficient stamp,
therefore, suit is not maintainable. Even if it is considered that the
contentions of defendant Nos.2 and 3 needs to be treated as triable
issue, defendant Nos.2 and 3 are liable to pay balance amount as they
have signed bill of exchange as director and acceptor of the bill of
exchange, thus, payment of amount under the bill of exchange is
presumed to be admitted to them. Hence, they are liable to pay the
balance amount under the bill of exchange to raise defence, as per the
guidelines of Hon’ble Supreme Court in the case of B.L. Kashyap and
Sons Limited Vs. JMS Steels and Power of Corporation and Another
reported in (2022) 3 SCC 294. Considering the discussion, I am of the
view that defendant Nos.2 and 3 are entitled for leave to defend on
payment of balance amount under the bill of exchange of Rs.5,00,000/-.
Resultantly, I proceed to pass the following order :-
ORDER
1. Summons for Judgment No.97 of 2018 in Summary
Suit No.718 of 2017, is disposed of in terms of
following order -
2. Leave is granted to the defendant Nos.2 and 3 to
defend the suit subject to depositing in this Court a
sum of Rs.5,00,000/- within a period of one month
from the date of order and shall file written statement
within 30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
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..7.. Summons for Judgment No.97/2018
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an ex-
parte decree against the defendant Nos.2 and 3 after
obtaining a non-deposit certificate from the PLA
Section.
5. Summons for judgment stands dismissed against
defendant No.1.
6. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 05/09/2024. Court Room No.84
Dictated on : 05/09/2024.
Transcribed on : 05/09/2024.
Signed by HHJ on : 05/09/2024.
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..8.. Summons for Judgment No.97/2018
“Certified to be true and correct copy of the original signed order”.
05/09/2024
at about 5.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 05/09/2024
Order signed by Hon'ble Judge on : 05/09/2024
Order uploaded on : 05/09/2024
at about 5.15 p.m.
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