Final Order 1

Order Details: Other
Pdf Text: MHCC010043562018 Presented on 03.04.2018
Registered on 03.04.2018
Decided on 17.08.2024
Duration 06Y: 04M: 14D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 114 OF 2018
IN
SUMMARY SUIT NO. 1224 OF 2016
Mr. Subhash Yelappa Kutade, ]
of Mumbai an adult Indian, ]
Inhabitant aged about 33 year, ]
Occupation : Money Lender, having ]
his office and residence address at ]
Shop No. A. L. H. 345, D.K. Bag Shop, ]
Nehru Nagar, Kurla(W), ]
Mumbai - 400 070 ]...Plaintiff
Vs. ]
Mr. Suresh Veeran Kittu, ]
of Mumbai an adult, Indian ]
Inhabitant, age 51 years, ]
Occupation : Service, having his ]
office address at Godrej and Boyce ]
Mfg. Co. Ltd. employee Code ]
No.13914 Phiroz Shah Nagar, ]
Vikroli East Mumbai - 400 079 and ]
having his residence address at ]
X-57 Room No.20, Godrej Colony, ]
Near Railway Station, Vikhroli East, ]
Mumbai 400 079. ]...Defendant
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2 SJ 114-2018 in Sum Su No.1224-2016
Appearance:-
Ld. Advocate Mr. B. S. Patil for plaintiff.
Defendant absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 17/08/2024
JUDGMENT
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 28/03/2018. Defendant has filed his leave to defend the
suit and resisted it and prayed for unconditional leave to defend the
suit.
02] As per the plaintiff, he is carrying of business of Money
Lending and he has license of Money Lending. Defendant is serving in
Godrej and Boyce Manufacturing Company Limited at Vikhroli. The
defendant had borrowed loan of Rs. 1,00,000/- from the plaintiff from
22/05/2015. Defendant has issued cheque bearing No. 802366 for an
amount of Rs. 1,00,000/- dated 06/09/2016 drawn on Canara Bank,
Dombivali (W) Branch against said loan. Further, when plaintiff
presented said cheque in the bank on 06/09/2016 it was dishonoured
with remark "Account Blocked". Therefore, plaintiff informed to the
defendant about dishonour of cheque and requested to pay amount of
cheque in cash. However, defendant failed to pay the amount.
Therefore, plaintiff issued notice dated 21/09/2016 to the defendant
and called upon to pay the cheque amount with interest. The defendant
gave false reply on 03/10/2016 to the said notice. It is the contention of
the plaintiff that he is entitled for cheque amount of Rs. 1,00,000/-
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3 SJ 114-2018 in Sum Su No.1224-2016
alongwith interest @ 18% p.a. thereon for the period 06/09/2016 to
06/11/2016. Thus, plaintiff is entitled for an amount of Rs. 1,03,000/-.
The defendant failed to make the payment therefore, he has filed the
present suit for recovery of money. The defendant has filed his leave to
defend to the suit however, he has not raised any substantial defence or
triable issue. Therefore, Summons for Judgment may be allowed.
03] On the other hand, it is submitted by the defendant in his
leave to defend that he is not aware whether plaintiff is doing business
of Money Lending. It is admitted he is serving in Godrej and Boyce Mfg.
Co. Ltd. However, he has also not borrowed any loan from the plaintiff.
Defendant has never issued any cheque in favour of the plaintiff as
contended by the plaintiff. Defendant had never promised to the
plaintiff that he will repay the amount of Rs. 1,00,000/- with interest. It
appears that the cheque was dishonoured for the reason "Account
Blocked". The plaintiff has issued false notice to the defendant
therefore, he replied to the said notice contended how and why cheque
was given to the plaintiff. It is further submitted that the alleged
transaction is of the year 2012 and plaintiff has filed the suit in the year
2016 therefore, suit is barred by limitation. It is further contended that
plaintiff has forcefully taken ATM card of the defendant and withdraw
an amount of Rs.1,500/- on 12/06/2012 and Rs. 400/- on 11/07/2012.
Thus, plaintiff has withdrawn an amount of Rs.1,900/- from the ATM of
the defendant. Defendant is not liable to pay an amount of
Rs. 1,00,000/- to the plaintiff and interest thereon as prayed. Further,
defendant has raised substantial issue and also triable issue of limitation
therefore, he is entitled for unconditional leave to defend the suit.
Hence, Summons for Judgment may be dismissed.
04] Perused Summons for Judgment, Leave to Defend and
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documents filed on record. Heard both the parties. It is the contention
of the plaintiff that he is Money Lender and advanced amount of
Rs. 1,00,000/- to the defendant on 22/05/2015. Further, defendant has
issued cheque against said amount on 06/09/2016. It is pertinent to
note that plaintiff has filed his money lending license on record vide list
Exh.5/4. On perusing said license, it appears that plaintiff is having
license of money lending. Further, plaintiff has contended that he had
advanced an amount of Rs. 1,00,000/- to the defendant. Defendant has
denied that he had borrowed said amount from plaintiff and also
denied that had issued cheque to plaintiff.
05] The plaintiff has contended that cheque issued by the
defendant was dishonoured. Further, plaintiff has filed this suit on the
basis of dishonoured of cheque issued by the defendant. Plaintiff has
filed dishonoured cheque and memo on record vide List Exh. 5/1.
Further, it appears that as defendant failed to pay loan amount, he had
issued notice dated 21/09/2016 to the defendant by RPAD. The copy of
said notice is filed on record vide list Exh. 5/3. It appears that
defendant has given reply to the said notice on 03/10/2016 and denied
he had borrowed loan of Rs. 1,00,000/- from the plaintiff and issued
cheque bearing No. 802366 dated 06/09/2016 in favour of plaintiff for
an amount of Rs. 1,00,000/-. The said reply is filed on record vide list
Exh.5/5. On perusing said reply, it appears that defendant has
contended that he had received a sum of Rs. 15,000/- from the plaintiff
prior to June 2012. Further, at that time plaintiff had forcefully taken
ATM card of the defendant. Further, it is the contention of the defendant
that plaintiff has withdrawn an amount of Rs. 15,000/- to Rs. 20,000/-
from his account. Further, it is also contention of the defendant that
plaintiff had forcefully taken disputed cheque from the defendant which
was blank signed cheque as a security against loan of Rs. 15,000/-. It is
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5 SJ 114-2018 in Sum Su No.1224-2016
pertinent to note that there is nothing on record to show that defendant
had made any complaint that plaintiff had forcefully taken his ATM card
and withdrawn amount from his account. Even, defendant has not
called upon plaintiff to return said ATM card.
06] As defendant has not brought any documentary evidence
on record to support his contentions. There is presumption that issuance
of cheque is for discharge of liability. As discussed above, issuance of
cheque is not disputed however, it is defence of defendant that it was
issued as security against loan of Rs.15,000/-. Thus, the alleged defence
raised by the defendant is not substantial defence. However, it is triable
issue, as defendant has to prove that disputed cheque was issued as
security as contended by defendant. Further, defendant has made the
allegations against the plaintiff that he has forcefully taken his ATM
card and withdraw an amount of Rs.15,000/- to Rs.20,000/-. Defendant
has filed photocopy of extract of his account alongwith leave to defend
to support his contention. However, on perusing said statement, it
cannot be inferred that plaintiff has withdrawn the amount as
contended by the defendant. The said fact needs to be proved by the
defendant by leading evidence and it needs adjudication. Therefore, I
am of the view that, it would be proper and just to grant conditional
leave to defend the suit to the defendant on depositing cheque amount.
Hence, I proceed to pass the following order :
O R D E R
1] The Summons for Judgment No. 114 of 2018 in Summary Suit
No. 1224 of 2016 is disposed off as follows :
a] The defendant is granted conditional leave to defend the
suit subject to payment of Rs. 1,00,000/-(Rupees One Lakh
only) within two months.
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b] After depositing an amount of Rs. 1,00,000/- defendant is
entitled to file his Written Statement within next one
month.
2] After depositing amount by the defendant, it be deposited in fixed
deposits in any Nationalized bank as per law.
3] No order to costs.
4] Summons for Judgment No.114 of 2018 is disposed off
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
Date:17/08/2024 C.R.No.81
Dictated on: 17/08/2024
Corrected & signed on:19/08/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
19/08/2024 Mrs. Rupali S. Bhor
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
17/08/2024
JUDGMENT/ORDER signed by P. O. on 19/08/2024
JUDGMENT/ORDER uploaded on 19/08/2024
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