Order 1

Order Details: Copy of Judgment
Pdf Text: SJ No.110-2018 in Summary Suit No.1198 of 2017 ...J/1
Judgment
MHCC010040832018 Presented on : 26.03.2018
Registered on : 26.03.2018
Decided on : 05.03.2026
Duration : 07 Y : 11 M : 10 D
Exhibit :
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO.110 OF 2018
IN
SUMMARY SUIT NO.1198 OF 2017
Mrs. Rabiya Begum Tahermiya Sajjade,
Aged : 45 years, Occ. : Homemaker,
Residing at Ashok Nagar, Hill-3, Behind Kamani,
Kurla, Mumbai – 400 086.
...Plaintiff
VERSUS
Mr. Premnath Sidhiram Pasi,
Aged : 43 Years, Occ. : Business,
Residing at Govind Nagar, Himalaya Society,
N.S.S. Road, Opp. Sun Hill View Building,
Ghatkopar (W), Mumbai – 400 084. …Defendants.
Appearance :
Adv. Sunil Mishra : For Plaintiff.
Adv. Santosh Mhaske : For Defendant.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATE : 5th March, 2026
J U D G M E N T
This is a suit under order Order XXXVII, Rule.2 of C.P.C for
recovery of an amount of Rs.1,71,079.45/- with 9% p.a on the principal
amount of Rs.1,00,000/- based on cheque.
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Judgment
2. The brief facts necessary to decide the suit is that:
The plaintiff and defendant new each other. The defendant
claimed he is owner of shop situated at Govind Nagar, Himalaya Society,
Asalpha Village Society, Ghatkopar (W), Mumbai admeasuring 22 x 8
fts., carrying on business in the name M/s. Tanaz Chicken Shop. The
defendant offered to sale the shop for consideration of Rs.16,00,000/-.
She paid Rs.1,00,000/- by cheque as part consideration. Thereafter, she
requested defendant to executed agreement for sale which defendant
refused on one pretext or the other. She later on came to know
defendant had already executed an agreement for sale of the shop with
third person.
3. It is her further case that, when she demanded the amount,
defendant issued cheque No.245325 dated 01.07.2014 drawn on Union
Bank of India, Kurla Branch for a sum of Rs.1,00,000/-. When presented
for encashment, it returned unpaid with remark ‘funds insufficient.’ She
lodged police complaint against defendant. On 21.04.2017, she issued
legal notice, however, inspite of it, the defendant failed to pay the
amount. Hence, suit. In the said suit, present SJ is filed with prayer to
make it absolute.
4. The defendant filed reply/leave to defend and denied the
contents of the plaint as well as the SJ in toto. The same is challenged
on the ground of limitation and jurisdiction. The defendant admitted
ownership over the said shop, offering it to plaintiff for consideration of
Rs.16,00,000/- and receiving Rs.1,00,000/- as token amount. However,
he claimed that after receiving the token amount, he handed over shop
to son-in-law of plaintiff who started business of chicken in the name of
M/s. Tanaz Chicken Shop. The plaintiff failed to make the payment of
the remaining amount within 90 days.
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5. It is his further defence that he did not issued the cheque.
After handing over the shop to son-in-law of plaintiff, he was running
business of tea and fast food. The cheque book, passbook and other
documents were in the shop. As his father was suffering from age
related diseases, he handed over the shop to son-in-law of plaintiff
without collecting the documents. It was only after receipt of the legal
notice he came to know about the misuse of cheque. The shop was used
by son-in-law of plaintiff for 11 months without rent of Rs.1,10,000/-
and did not paid the electricity and also caused damage to shop. Hence,
suffered loss of Rs.1,54,570/- which plaintiff and her son-in-law are
liable to pay him. Thus, dismissal of SJ with costs and prayer for an
unconditional leave to defend the suit is prayed.
6. Heard Adv. Sunil Mishra for plaintiff and Adv. Santosh
Mhaske for defendants. Gone through the original documents filed on
record. From the pleadings of the parties and the arguments advanced,
the defendant is not denying ownership over the shop which he agreed
to sell to plaintiff. He is also not denying receiving Rs.1,00,000/- as part
payment. But, took defence that plaintiff failed to make payment of the
remaining within 90 days as promised. Therefore, as regards the
pleadings of plaintiff of entering into an agreement for sale of shop with
defendant and parting Rs.1,00,000/- as part consideration is admitted.
7. As regards, the refund of Rs.1,00,000/- by cheque, plaintiff
has filed on record the cheque. The defendant is not disputing his
signature on the cheque, however, took defence that after the initial
agreement for sale, he handed over the shop to son-in-law of plaintiff,
however, the signed cheques and other documents were laying in the
shop which plaintiff misused it. On this point, Adv. Mishra had
submitted that cheque of Rs.1,00,000/- was given by way of refunding
the amount received as advanced part payment. No any police
complaint was filed by defendant for loss of cheque or its misuse.
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Judgment
Therefore, the defence of misuse is devoid of any merit. Whereas, Adv.
Mhaske submitted that the cheque was lying in the shop which is
misused. Therefore, according to him defendant has raised triable issues
indicating he has fair and reasonable defence, hence for an
unconditional leave to defend the suit the defendant.
8. As discussed in the admitted facts, defendant is not
denying receiving Rs.1,00,000/- defendant raising triable issues
indicating he has fair and reasonable defence to grant him conditional
or an unconditional leave to defend the suit from plaintiff towards part
payment for sale of his shop, however, took defence of misuse of the
cheque. However, it is material to note that, no any police complaint
was filed by him regarding the misused cheque. He is not denying his
signature on the cheque. On the contrary, the amount given as part
payment and the amount refunded by way of defendant raising triable
issues indicating he has fair and reasonable defence to grant him
conditional or an unconditional leave to defend the suit cheque are
similar amount. If really the plaintiff wanted to misuse the cheque, she
could have written higher amount on the cheque. Hence, the defence of
the cheque being misused is a moonshine defence as no prudent man
would keep a signed cheque in such a casual manner to be misused.
9. On the point of contesting defendant raising triable issues
indicating he has fair and reasonable defence to grant him conditional
or an unconditional leave to defend the suit, useful reference to para.17
of judgment in
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.
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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 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
genuineness 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 expeditious 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.
10. 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 defendant is
not denying receiving Rs.1,00,000/- from plaintiff as part consideration
amount and failing to file police complaint about misuse of cheque,
hence, no any substantial defence is raised to grant defendant
conditional or an unconditional leave to defend the suit. If that being
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Judgment
so, then the SJ is liable to made absolute against defendant only by
decreeing the suit.
11. The amount of cheque is Rs.1,00,000/-. The plaintiff
claimed interest of 15% and in all claimed Rs.1,71,079.45/- I am of the
view that the rate of interest claimed is exorbitant. At the most plaintiff
is entitled for interest at the rate of 9% p.a on the principal amount of
Rs.1,00,000/- from the date of filing of the suit till realization. In view
of the above discussion, I proceed to pass following order.
ORDER
1. The Summons for Jugment No.110 of 2018 in Summary Suit
No.1198 of 2017 is made absolute.
2. The Summary Suit No.1198 of 2017 decreed with costs.
3. The defendant is directed to pay to plaintiff an amount of
Rs.1,71,079.45/- with 9% p.a on the principal amount of
Rs.1,00,000/- from the date of filing of the suit till realization.
4. The Summons for Jugment No.110 of 2018 is disposed of
accordingly.
5. The decree be drawn up accordingly.
6. The R & P be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:05.03.2026. City Civil Court, Mazgaon,
MUMBAI.
Dictated on : 05.03.2026
Transcribed on : 06.03.2026
checked on : 07.03.2026
Signed on : 07.03.2026.
( N. B. Lavte )
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.03.2026 at 5.45 p.m.
UPLOAD DATE AND TIME
(Mrs. 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
05.03.2026
Judgment/order signed by P.O. on 07.03.2026
Judgment/order uploaded on 07.03.2026
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