Interim Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 121/2018 SUM.SUIT 1129/17 1
MHCC010044292018
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT No.121 of 2018
IN
SUMMARY SUIT No. 1129 of 2017
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC01-004429-2018)
Rajkumar Mohansing Bajaj,
Age: 54 years, the Karta and Manager
of Rajkumar Bajaj H.U.F., carrying on
business in the name and style of
M/s. BLISS ENTERPRISES, a Proprietory
Concern as its Sole Proprietor at 602F,
Neelkanth, 98, Marine Drive,
Mumbai-400 002. ...Plaintiff
Versus
1. Shailesh P. Sharma,
Age: Adult, carrying on business
at New Excelsior Building, 6th floor,
Room No.5-A, Wallace Street,
Fort, Mumbai-400 001.
2. M/s. Speciality Polymers Pvt.Ltd.,
a Company registered under the
Companies Act, 1956 carrying on
business at New Excelsior Building,
6th floor, Room No.5-A, Wallace Street,
Fort, Mumbai-400 001. ...Defendants
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Appearances:-
Advocate Ms.Kavita Lalwani for the Plaintiff.
Advocate Shri.Ravindra Jadhav h/f.advocate Mr.Prasad Rane for the
Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 2ND MARCH 2020
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.2,76,650/-
(Rupees Two Lakhs Seventy Six Thousand Six Hundred and Fifty only)
with Pendente Lite and future interest at the rate of 18% p.a. on the
principal amount of Rs.2,20,000/-.
2. According to the plaintiff, he is sole proprietor, and carrying on
business in the name and style, of M/s. Pride Investments. Defendant
No.1 is an individual. Defendant No.2 is a registered company. On
23/03/2015, for valuable consideration, defendant No.1 drawn two
bills of exchange dated 23/03/2015 for Rs.2,75,000/-, and dated
26/04/2016 for Rs.55,000/- on defendant No.2 and in favour of the
plaintiff. On 25/05/2016, when the plaintiff presented the bills of
exchange, the defendants dishonoured the same. On 15/08/2016 the
defendants made payment of Rs. 55,000/- in respect of bill of exchange
dated 26/04/2016 by cheque and took back bill of exchange dated
26/04/2016 of Rs.55,000/-. On 09/01/2017, the defendants made part
payment of Rs.55,,000/- by cheque in respect of bill of exchange dated
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23/03/2015 and promised to pay balance amount of Rs.2,20,000/-.
Thereafter, the defendants, towards repayment of the due and balance
amount of the bill of exchange, issued two cheques dtd. 21/06/2017
for Rs.1,65,000/- and Rs.55,000/- in favour of the plaintiff. However,
when the plaintiff presented the cheques, the same were dishonoured
with remarks 'funds insufficient'. The plaintiff several times called upon
the defendants to pay the balance amount of Rs.2,20,000/- of the bill of
exchange along with interest @ 18% p.a.. Vide legal notice dated
18/08/2017 also the plaintiff called upon the defendants to pay the
amount with interest. However, the defendant falsely replied the notice
vide reply dated 19/08/2017. Calculating the interest, at the institution
of the suit the amount due and payable by the defendants was
Rs.2,76,650/-. Therefore, the plaintiff has claimed recovery of the
amount with interest as prayed.
3. The defendants filed reply contesting the Summons for Judgment.
According to the defendants, entire plaint is on the footing of
transaction of bill of exchange between the parties when no dues are
pending between the parties. They denied that any bills of exchange
were drawn by defendant No.1 on defendant No.2. According to the
defendants, they paid Rs,3,00,000/- on 008/08/2015 towards the bill of
exchange dated 23/03/2015 and also paid entire interest by cheque on
09/01/2017 for Rs.55,000/- towards the bill of exchange. Thus, the
defendants have paid entire amount with interest to the plaintiff. The
plaintiff had assured that the blank undated security cheques will be
handed over to the defendants after final payment. However, the
plaintiff did not hand over the same cheques and misused the same. The
defendants are thus not liable to pay any amount. Therefore, they
requested to grant unconditional leave to defend.
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4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled to
Summons for Judgment?
In the Negative
2. Whether the defendant is entitled to
Leave to defend?
If yes, whether conditional/
unconditional?
Defendant No.1 is entitled to
leave to defend on condition
that he shall deposit amount
of Rs.2,20,000/- in the court.
3. What order? As per final order
REASONS
AS TO POINTS NO.1 to 3 :-
5. Worth to note that the proceeding against defendant No.2 has
been stayed by virtue of order of NCLT. The noting dated 07/10/2019
shows that the suit has proceeded against defendant No.1.
6. The Ld.advocate on behalf of the plaintiff argued that in the reply
notice given by defendant No.2 only, nothing has been mentioned
regarding the bill of exchange. Thus, the issuance of bill of exchange is
admitted. Although the defendants raised the plea that payment has
been made to the plaintiff, there is no proof regarding the payment. The
defendant has no defence. Therefore, she requested to allow the
summons for judgment.
7. On the other hand, Ld. advocate on behalf of the defendant
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argued that the bill of exchange was drawn in favour of Pride
Investment and not the plaintiff. There is nothing to show that the
plaintiff is a proprietor of Pride Investment. The defendants have made
payment to the plaintiff of the due amount. Thus, the defendant has
substantial defence. Therefore, he requested to reject the Summons for
Judgment and grant unconditional leave to defend. He relied on 1.S.P.
Brothers Vs. Biren Ramesh Kadakia, 2008(o) AIJ-MH 136680, 2. State
Bank of Hyderabad Vs. Rabo Bank, 2015(o)AIJEL-SC 57154.
8. I have carefully gone through the decisions in the given
cases. In the case of 'S.P. Brothers', the Hon'ble Bombay High Court
held that issuance of certificate of tax deducted at source would
not be a document which will fall in any of the clauses under Sub-
rule 2 of Rule-1 of order 37. In the same case, a written contract
between the parties was neither pleaded nor any document was
placed to that effect on the record. Therefore, it was directed in
the said case that the suit therein shall proceed as ordinary suit. In
the case in hand, the suit is based on Bill of exchange and thus, it
satisfies the requirements of Order 37 Rule 1(2) of Code of Civil
procedure. Therefore, the decision in the case of 'S.P. Brothers' is
not beneficial to the defendant in the case in hand.
9. In the case of 'State bank V/s Rabo bank', the Hon'ble
supreme court held as “If the defendant satisfies the Court that he
has a good defence to the claim on its merits, the plaintiff is not
entitled to leave to sign the judgment and the defendant is entitled
to unconditional leave to defend. If the defendant raised a triable
issue indicating that he has a fair or bona fide or reasonable
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defence although not a positively good defence the plaintiff is not
entitled to sign judgment and the defendant is entitled to
unconditional leave to defend. If the defendant discloses such facts
as may be deemed sufficient to entitle him to defend, that is to say,
although the affidavit does not positively and immediately made it
clear that he has a defence, yet, shows such a stage of facts as
leads to the inference that at the trial of the action be may be able
to establish a defence to the plaintiff's claim, the plaintiff is not
entitled to judgment and the defendant is entitled to leave to
defend but in such a case the court may in its discretion impose
conditions as to the time or mode of trial but not as to payment
into court or furnishing security. If the defendant has no defence or
the defence is illusory or sham or practically moonshine then
although ordinarily the plaintiff is entitled to leave to sign
judgment, the court may protect the plaintiff by only allowing the
defence to proceed if the amount claimed is paid into court or
otherwise secured and give leave to the defendant on such
condition, and thereby show mercy to the defendant by enabling
him to try to prove a defence.” These principles of law have to be
kept in view while deciding whether leave to defend has to be
granted to the defendant.
10. The defendant advocate argued that there is no material to
prove that the plaintiff is proprietor of pride investment. However,
this court must note that the plaintiff has come with specific case
that he is the proprietor of the pride investment. The defendants in
their reply did not specifically deny proprietorship of the plaintiff
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but merely pleaded that the plaintiff must prove same fact.
Further, the defendants did not clarify as to who according to them
is the proprietor of Pride Investment. It cannot be lost sight of that
admittedly the defendants had handed over cheque to the plaintiff.
If the plaintiff is not the director then to whom the defendants had
handed over the cheque, the defendants do not clarify anything
about it. That apart the plaintiff has produced on record copy of
license issued under the Maharashtra Shops and establishment act
and income tax return for year 2014-15, which show the plaintiff
to be proprietor of Pride Investments. Thus, there is no substance
in the contention of the defendant challenging proprietorship of
the plaintiff.
11. In the case in hand the plaintiff has come with specific
contention that defendant No.1 had drawn two bills of exchange
dtd.23.03.2015 for Rs.2,75,000/- and dated 26/04/2016 for
Rs.55,000/-. The defendants also made payment in respect of bill
of exchange dated 26/04/2016 for Rs.55,000/-. The defendants
also made part payment of Rs.55,000/-in respect of bill of
exchange dated 23/03/2015. However, the balance of
Rs.2,20,000/- still remained to be paid by the defendant for which
the defendant had issued two cheques dtd. 21.06.2017 which
came to be dishonored. The defendants in their reply at one place
denied that bills of exchange were drawn. However, at other place
taken a plea that they have made the payments towards the bill of
exchange. Thus, the contentions of the defendants are self
contrary. The defendants also took a plea that the balance amount
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of Rs.2,20,000/- has been already paid by them as Rs.3,00,000/-
on 008/08/2015, in cash to the plaintiff. Thus, according to the
defendants the balance amount of Rs.2,20,000/- with interesst has
been paid by them in cash to the plaintiff. However, this court
must take into consideration that the defendants issued bills of
exchange in favour of the plaintiff, for certain amount they had
issued cheques to the plaintiff, payments of Rs.55,000/-towards
bill of exchange dated 26/04/2016 has been made vide cheque
dated 15/08/2016, part payment of Rs.55,000/- towards bill of
exchange dated 23/03/2015 has been made by cheque dated
09/01/2017. Keeping in view the manner of formality between the
parties while making the payment, it is not at all reliable and
probable to say that the defendants paid the amount in cash to the
plaintiff. Also, admittedly there are five suits pending between the
same parties in this court. In all the suits, the defendants have
taken a similar plea that the amount as claimed by the plaintiff
was paid to the plaintiff already in cash. The rest of the matters
also involve claim of lakhs of rupees. It is not believable and
probable that the defendants would have paid such a huge amount
in cash to the plaintiff. In this background, this court has no
hesitation to say that the defence as put forth on behalf of the
defendant is moon shine. However, still this court is of the view to
grant an opportunity to enable to the defendant to prove his
defence. In this background it is just and proper to impose
condition on the defendant to deposit the amount of
Rs.2,20,000/-. Therefore, the plaintiff is not entitled to summons
for judgment whereas the defendant No.1 is entitled to leave to
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defend on condition that he shall deposit amount of Rs.2,20,000/-
in the court. Hence, point No.1 is answered in the negative,
whereas point No.2 is answered as that defendant No.1 is entitled
to leave to defend on condition that he shall deposit amount of
Rs.2,20,000/- in the court. In answer to point No.3 order as
follows is passed:
ORDER
1. The summons for judgment 121 of 2018 against defendant
No.1 is rejected.
2. Leave to defend is granted to defendant No.1 on condition
that he shall deposit amount of Rs.2,20,000/- (Rupees Two Lakhs
Twenty Thousand only) in the court on or before 27-04-2020.
3. Subject to deposit of the amount as above, defendant No.1
shall file his written statement on or before 27-04-2020
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 02/03/2020 City Civil Court, Gr. Mumbai
Dictated on : 02/03/2020
Signed on : 04/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
12/03/2020 at 4.20p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
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Date of pronouncement of Judgment/Order 02/03/2020
Judgment/Order signed by P.O. on 04/03/2020
Judgment/Order uploaded on 12/03/2020
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