Final Order 1

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MHCC010040232019
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.128 OF 2019
( CNR No. MHCC010040232019 )
IN
SUIT NO. 875 OF 2018
(CNR NO.MHCC010043022018)
Shripal Shantilal Jain
Address 303, Swamivatsalya Bldg., T. B.
Kadam Marg, Chinchpokali, Mumbai – 400 033. … Plaintiff
Vs.
Amrutlal Damji Shah
Address 601, Shangrilla Apartment, L. T.
Road, Borivali West, Mumbai. ..Defendant
Advocate Mr.Jain for the plaintiff.
Advocate Mr.Sangita for Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 02nd May, 2022
ORDER
The plaintiff has filed the suit for recovery of principal amount
Rs. 20,00,000/ and Rs.10,13,277/ interest thereon. In the said suit the
plaintiff has tendered Summons for Judgment and requested some relief.
The plaintiff submitted that he is resident of Mumbai. The defendant is
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also resident of Mumbai. The defendant is engaged in the business of
redevelopment of construction of buildings. The plaintiff has requested
12% per annum interest on total due amount of Rs.30,13,277/ from the
date of suit till its realization.
02. The plaintiff submitted that Santosh Jain is his brother. The
brother of plaintiff acquainted with the defendant No.1 and 2 through one
Mr. Kumar Pal Mehta. The defendant approached to plaintiff through
Kumar Pal Mehta and requested financial assistance from the plaintiff for
expansion of their business. They have requested financial assistance with
interest payable on demand by the plaintiff with 12% per annum payable
quarterly. Believing representation of the defendant the plaintiff has paid
Rs.25,00,000/ by cheque No.583058 dated 14.05.2010 drawn on HDFC
Bank. The said amount is encashed by defendant thereafter the defendant
has regularly paid the interest as agreed between the parties. He has paid
the interest till September, 2013. The defendant has also shown some facts
in the tax assessment form. Thereafter, the defendant became irregular in
payment of interest and principal amount. On 30.10.2014, defendant has
paid Rs.5,00,000/ and on 16.11.2014 the defendant has paid Rs.68,055/.
Amount of Rs.5,00,000/ was adjusted towards principal amount and
amount of Rs.68,055/ was adjusted towards interest. Accordingly, on
31.03.2015, the amount of Rs.27,13,989/ was due and payable by the
defendant to the plaintiff. Thereafter, the defendant has also confirmed
account statement prepared by plaintiff for the year 20142015.
Thereafter, in spite of several requests and reminders defendant neglected
and failed to pay the due amount. Therefore, on 17.03.2018 the plaintiff
has sent demand notice and asked the defendant to pay Rs.20,00,000/
towards principal amount of Rs.10,03,993/ was interest thereon. In spite
of notice defendant failed to pay the amount. Therefore, plaintiff has filed
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the suit. In the said suit, he has requested relief for Summons for
Judgment.
03. The defendant filed reply to Summons for Judgment. He has
denied contents of the plaintiff made in the plaint. As per statement of
defendant, this court has no jurisdiction to try and entertain the suit. The
defendant submitted that as per statement of plaintiff he has advanced
financial assistance in the year 2010. He has filed suit in the year 2018.
Therefore, the suit is hopelessly barred by law of limitation. The defendant
submitted that as plaintiff has supressed material facts and came before
the court with unclean hands. Therefore, he is not entitled for any relief. In
Para 9 of the reply, the defendant submitted that he was in need of money
and have requested plaintiff to help him for financial assistance.
Accordingly, he had taken friendly loan. In Para 10 as the defendant has
admitted submission of information in the TDS form about payment of
interest to the plaintiff. But as per statement of defendant he submitted
form of TDS in the year 2015. Plaintiff gives said cause of action for filing
suit in the year 2018. With this the defendant requested to dismiss
Summons for Judgment as well as the suit. The plaintiff has also filed
rejoinder to the reply and denied contents of the reply.
04. Heard Ld. Advocate for plaintiff as well as defendant from
pleading and documents filed by plaintiff on record, following points arise
for consideration to which I have given reasons before them.
Sr. No. Points / Issues Findings
1. Does plaintiff entitled for summons for
judgment? In the Affirmative
2. Does defendant entitled for leave to defend
the suit unconditionally? In the Negative
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3. What order? Summons for
Judgment is
made absolute.
AS TO POINT NOS. 1 AND 2
05. It is the case of plaintiff that he has advanced financial
assistance to defendant that is of Rs.25,00,000/. The plaintiff has
produced copy of account statement of HDFC Bank maintained in the
name of plaintiff. In that statement on 17.05.2010, the amount shown to
be deducted for the defendant i.e. of Rs.25,00,000/. However, in para 8 of
the reply, the defendant has admitted financial assistance advanced by
plaintiff to him but he has denied other contentions of the plaint. However,
defendant also failed to mention actually how much amount he has
obtained from plaintiff. On the contrary, from the statement of plaintiff
supporting copy of accounts extracts shows that plaintiff has advanced
Rs.25,00,000/ to the defendant.
06. The plaintiff submitted that out of the said amount, the
defendant has paid Rs.5,00,000/ on 13.01.2014. The said amount was
adjusted towards principal amount. The defendant has also paid
Rs.68,055/ and said amount was adjusted towards interest. The plaintiff
has produced TDS form, confirmation of accounts statement in the TDS
form. The defendant has shown paid interest to the plaintiff in the
confirmation account. On 29.10.2014 by cheque No.064504, the amount is
debited from the accounts of plaintiff. However, the defendant has
admitted mentioning of interest in the TDS form and obtaining of financial
assistance from the plaintiff. The defendant has challenged the said
amount on the ground of jurisdiction and on the ground of limitation.
Much emphasises is given from the defendant on account of limitation as
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well as jurisdiction. The plaintiff in support of limitation placed reliance on
citation of Hon’ble Bombay High Court in Mohandas versus Varad 2012
(6) M.H.L.J 476. In the said judgment, the Hon’ble High Court held that
suit filed on the basis of written contracts between the parties, the
defendant had obtained loan from the plaintiff and said arrangements
between the parties was followed till 30.09.2007. Therefore, the cause of
action for suit based on information mentioned in the TDS form in the year
2008 is within the limitation and therefore, the suit is tenable.
07. Though the plaintiff has cited judgment of the Hon’ble High
Court, admittedly, the question of limitation would depend upon facts as
well as provisions of law and that would be decided by giving opportunity
to the parties and at the time of trial. Therefore, just the defendant has
raised objection of limitation, does not mean that the suit is not tenable.
The defendant has also raised objection of jurisdiction that also needs to be
decided on merit.
08. The advocate of defendant relied upon three judgments in
support of defence.
i. Jyotsana V/s. Parekh date of judgment 26042007.
ii. Motilal V/s. Jayantilal First Appeal No.1214/2004.
iii. S.P. Brothers V/s. Biren Kadakia 2008 SCC 1599.
The citation of Jyotsana is about written contract between the
parties and therefore, without the contract the suit is not tenable in the
nature of Summary Suit. In support the, Ld. Advocate for defendant relied
upon landmark judgment of Bombay High Court. In Jyotsana’s judgment
the full bench of Hon’ble High Court held that TDS is not the document
which can create written contract between the parties. In reply to the
objection, the plaintiff has relied upon citation of Hon’ble High Court in R
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Kumar versus Chemical 2000 SCC Bombay 738. In the said judgment the
Hon’ble High Court held that entries in the books of account, and the form
No.16A i.e. certificate of deduction of tax can be called as written contract
between the parties and therefore, such suit is tenable as summary suit.
The Hon’ble High Court of Bombay in Jyotsana Judgment clearly held that
TDS contract is not contract between the parties. Though it is so some TDS
statements are raised for limitation purpose. Before that it is the statement
of plaintiff, that he has advanced loan of Rs. 25,00,000/ by cheque. The
said entry is reflected in the account statement of HDFC Bank. However,
the defendant has admitted advance of loan from plaintiff. Therefore, it
cannot be said that the suit is just based on TDS statement. On the
contrary, the statement of plaintiff is admitted by the defendant i.e. called
as written contract between the parties. Therefore, it cannot be said that
the suit is not tenable in the nature of Summary Suit. From the admission
of defendant in para 9 and 10 of reply and account statement it can be said
that the plaintiff has advanced Rs.25,00,000/ to defendant. The defendant
has denied liability. But the defendant has admitted taking of money from
plaintiff. However, there is no document to show what is actual and
agreed interest rate between the parties and therefore, defendant is liable
to pay at least principal amount i.e. 20,00,000/. The question of interest
i.e. Rs.10,13,277/ will be decided when the question of jurisdiction and
other questions would be decided. Therefore, Summons for Judgment is
made partly absolute accordingly. I answer to point No.1 as partly
affirmative, point No. 2 in negative and proceed to pass the following
order.
O R D E R
1. Summons for Judgment No.128 of 2019 in Suit No.875 of 2018 is
made partly absolute.
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2. The defendant do pay amount of Rs.20,00,000/ to the plaintiff
within 6 months from the date of this order.
3. Summons for Judgment No.128 of 2019 is disposed of.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 02.05.2022 Gr.Mumbai.
Dictated on: 02.05.2022
Typed on : 05.05.2022
Signed on : 11.05.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload
Date
Upload Time Name of Stenographer
12/05/2022 3.45p.m. Mr. Prasad S. Pednekar
Name of the Judge (With Court Room
No.)
HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
02/05/2022
JUDGEMENT /ORDER signed by P.O.
on
11/05/2022
JUDGEMENT /ORDER uploaded on 12/05/2022
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