Final Order 1

Order Details: Other
Pdf Text: MHCC010040822018 Presented on 26/03/2018
Registered on 26/03/2018
Decided on 30/07/2024
Duration 06Y: 04M: 04D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 108 OF 2018
IN
SUMMARY SUIT NO. 83 of 2018
Mr. Bharat Sagarmal Rathod ]...Plaintiff
Vs.
Mr. Premlal Shobhnath Yadav ]...Defendant
Appearance:-
Ld. Advocate Rajesh Patil for plaintiff.
Ld. Advocate S. K. Balodi for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 30/07/2024
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 19/03/2018. Defendant has filed his reply to the
summons for judgment and resisted it and prayed for unconditional
leave to defend the suit. The plaintiff has filed rejoinder to the reply
given by the defendant and defendant also filed rejoinder to rejoinder
of plaintiff.
02] As per the plaintiff, he and defendant knows each other.
The defendant has offered him premises bearing No. 207, 2nd Floor,
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Sankalap Niketan, Second Carpenter Street, Mazgaon Dock Yard,
Mumbai (hereinafter referred as said property) on leave and license
basis for 11 months. Accordingly, they entered into an agreement of
leave and license for the period 01/01/2014 to 30/10/2014, plaintiff
agreed to deposit a sum of Rs.20,00,000/- as refundable security
deposit. The said leave and license was executed on 14/12/2013. On
the same day, defendant executed an affidavit dated 14/12/2013
acknowledging the receipt of Rs. 20,00,000/- as a security deposit and
agreed to repay the same on expiry of 11 months. Further, defendant
issued 5 cheques of Rs. 4,00,000/- each. However, after execution of
said agreement it was not implemented. Therefore, plaintiff claimed
refund of security deposit as Rs. 20,00,000/- as well as Rs. 4,00,000/-
towards interest as per Acknowledgment-cum-Declaration dated
23/12/2014. Further, on presenting said cheques by the plaintiff it were
dishonoured. Therefore, plaintiff issued demand notice dated
25/02/2015, 23/03/2015 and 16/05/2015 respectively and called
upon defendant to refund the security deposit. The defendant replied to
the said notice on 07/03/2015, 02/04/2015 and 19/05/2015
respectively with false allegations. Therefore, plaintiff had sent
rejoinder to the said reply on 28/03/2015, 18/04/2015 and
09/06/2015 and denied allegations and claimed outstanding amount.
Thereafter, plaintiff has filed complaints u/s.138 of Negotiable
Instruments Act against defendant. In the said proceedings, defendant
was convicted vide common Judgment dated 15/03/2017. As defendant
has failed to refund security deposit therefore, plaintiff has filed suit on
the basis of dishonoured of cheque and claimed amount of
Rs. 24,00,000/- along with interest at the rate of 18% p.a.
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03] It is submitted on behalf of plaintiff that defendant has not
raised substantial defence nor any triable issue. It is further submitted
that the present suit is maintainable under Order 37, Rule 2 of Civil
Procedure Code on the basis of dishonour of cheques. He relied on
ratio laid down in the case of Jyotsna K. Valia & Ors. Vs. T. S. Parekh &
Co.& Ors., MANU/MH/0252/2007 and Rajesh Mandanlal Anand vs.
Rakesh Madanlal Anand and another, 2018 SCC OnLine J&K 572.
Further, he submitted that issue of limitation raised by the defendant is
not tenable as suit is filed within the limitation as cause of action arose
on 30/01/2015 when cheque issued by defendant was dishonoured. It
is further submitted that nothing is observed by Metropolitan Magistrate
in para 10 and 14 of judgment in complaint under Section 138 of N. I.
Act as agreement is contrary to section 2(g) and Section 10 of Indian
Contract Act. On the contrary, it is exhibited and relied on in the said
judgment. Therefore, plaintiff is entitled for decree as he has filed all
original documents on record. Hence, summons for judgment may be
allowed.
04] On the other hand, it is submitted by the defendant that
the plaintiff has filed suit on the basis of agreement i.e Leave and
Licence, Declaration dated 23/12/2014 and Affidavit dated
14/12/2013. It is further submitted that Leave and License Agreement
needs to be registered and stamp duty has to be paid on it as per
Maharashtra Rent Control Act, 1999, Section 36 A (c). Further, it needs
to be registered as per Section 17(d) of Registration Act. However,
plaintiff has neither registered Leave and License Agreement nor paid
stamp duty on it. Therefore, the said Leave and License is not
admissible in evidence. Further, plaintiff has failed to prove in
complaint before Metropolitan Magistrate that he was having cash of
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Rs. 20,00,000/- and paying an amount of Rs. 20,00,000/- in cash is
against Section 269 SS of Income Tax Act. He relied on ratio laid down
in Venkatesh Sadanand Pai Vs. Mrs. Kanchan A. Kakodkar & Anr., 2016
Cri.L.J.1267. The plaintiff has not shown the said amount in Income Tax
Return. The plaintiff has filed this suit on the basis of decision of the
complaint before the Metropolitan Magistrate. The defendant has been
tried and convicted before the Metropolitan Magistrate therefore, again
he cannot be tried on the basis of same dishonour cheque. He has
relied on ratio laid down in Radheshyam Kejriwal Vs. State of West
Bengal & Anr., 2011 DgLaw (SC)1343, Rajaram Sriramulu Naidu (since
deceased) through legal heirs Vs. Maruthachalam (since deceased)
through legal heirs, 2023 LiveLaw (SC) 46, Shri Rajendra Pangam Vs.
Shri Paresh B. Naik and Anr., 2015 ALL MR (Cri) 3026, Beharilal Vs.
Behari Lal, AIR 1972 J&K 114. It is further submitted that the
defendant has substantial defence and raised triable issues, as it
requires adjudication. Therefore, defendant is entitled for unconditional
leave to defend the suit. Hence, summons for judgment may be
dismissed.
05] Perused Summons for Judgment, reply of the defendant,
rejoinder by the plaintiff to the reply of the defendant and documents
on record. Heard both the parties. I have gone through case laws cited
on behalf of both the parties. It is pertinent to note that it is not
disputed that Leave and License was executed between the parties on
14/12/2013 vide Exh. 6/1. Further, plaintiff has relied on affidavit
dated 14/12/2013 executed by the defendant as well as
Acknowledgment-cum-Declaration dated 23/12/2014. Admittedly,
Leave and License Agreement needs to be registered as per section
17(1) of Registration Act and it requires stamp duty as per Section
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36A(c) of Maharashtra Rent Control Act, 1999. On perusing copy of
Leave and License Agreement filed by the plaintiff, it appears that it is
not duly stamped and registered. Therefore, certainly it cannot be
admitted in the evidence.
06] Further, it appears that plaintiff has filed this suit on the
basis of dishonour of cheques. As per the plaintiff, defendant had
issued cheques in discharge of liability towards refund of security
deposits. On the contrary, defendant has refused and denied the same.
Further, it is the contention of the defendant that plaintiff has fabricated
the documents however, defendant has not brought any substantial
material to support his contention. The defendant has contended that
plaintiff has advanced an amount of Rs.20,00,000/- in cash which is
against section 269 SS of Income Tax Act. On perusing said sections, it
appears that it is bar to accept an amount of rupees more than
Rs. 20,000/- in cash. Therefore, if at all there is violation of Section
269 SS of I. T. Act, it is the defendant who has violated the same. The
ratio laid down by defendant in Venkatesh Sadanand Pai Vs. Mrs.
Kanchan A. Kakodkar & Anr.'s case is not applicable to the facts of
present case at this stage. It is also contention of defendant that the
Leave and License Agreement is not attested. It is pertinent to note that
Leave and License Agreement though requires registration and stamp
duty, it is not required compulsory attestation, as per Section 68 of
Indian Evidence Act. Therefore, there is no substance in the contention
of the defendant that it is not attested.
07] It is the contention of the defendant that document of
immovable property requires registration as per Section 53A of Transfer
of Property Act 1882. It is pertinent to note that the said provision is not
relevant in the present case, as it relates to transfer of rights for
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consideration. Therefore, ratio laid down in Beharilal Vs. Behari Lal's
case is not applicable to the facts of present case. It is the contention of
the defendant that learned Metropolitan Magistrate has observed in
para 10 and 14 about Leave and License is contrary to Section 2(g) and
10 of Indian Contract Act. On perusing judgment in
CCNo.701,960/SS/2015 dated 15/03/2017 (page 385 of plaint), it
appears it is not observed by Metropolitan Magistrate that Leave and
License Agreement is contrary, to provisions of Indian Contract Act. It is
only observed that it is not a civil case. Therefore, there is no substance
in the contention of the defendant that in respect of observations in
para 10 and 14 of said judgment. The plaintiff has to prove that he had
advanced money to the defendant by way of security deposit and to
refund the same defendant has issued cheques. It is settled law that suit
under Order 37, Rule 2 of C.P.C. is maintainable on the basis of
dishonour of cheque as held in Jyotsna K. Valia & Ors. Vs. T. S. Parekh &
Co.& Ors. and Rajesh Mandanlal Anand Vs. Rakesh Madanlal Anand
and another's cases. Further, as discussed above, the basis on which the
plaintiff is relying i.e. Leave and Licence Agreement is neither registered
nor stamped as per provisions. Therefore, it cannot be read in evidence.
The defendant has raised substantial defence and also raised other
triable issues such as whether plaintiff had an amount of
Rs. 20,00,000/- in cash at the relevant time.
08] So far as contention of defendant that he cannot tried twice
for same offence and relied on ratio laid down in Radheshyam Kejriwal
Vs. State of West Bengal & Anr’s case. It is pertinent to note that if
cheque is dischonoured, a party has right to file civil and criminal
complaint on the basis of said dishonoured cheque. Therefore, ratio laid
down in said case law is not applicable to the facts of present case.
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Admittedly, it is settled proposition of law that standard of proof in
criminal proceeding and civil proceeding is different as held in Rajaram
Sriramulu Naidu (since deceased) through legal heirs Vs.
Maruthachalam (since deceased) through legal heirs. Further, yet
evidence is to be recorded in present proceeding therefore, ratio laid
down in Shri Rajendra Pangam Vs. Shri Paresh B. Naik and Anr. is not
helpful to the defendant at this stage.
09] Thus, as discussed above defendant has raised substantial
defence and also triable issues. Therefore, I am of the view that
defendant is entitled for unconditional leave to defend the suit. Hence, I
proceed to pass following order.
ORDER
1) Summons for Judgment No.108/2018 in Summary Suit
No. 83/2018 is disposed off as follows:
(a) Defendant is granted unconditional Leave to defend the suit.
(b) The defendant will be at liberty to file his written
statement on record within 30 days from the date of the order.
2) Summons for Judgment No.108/2018 is disposed off accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 30/07/2024 Court Room No.81
Dictated on : 30/07/2024
Corrected & signed on :03/08/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
05/08/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 30/07/2024
JUDGMENT/ORDER signed by P. O. on 03/08/2024
JUDGMENT/ORDER uploaded on 05/08/2024
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