Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.135/2019
MHCC010046112019 Presented on : 25/04/2019
Registered on : 25/04/2019
Decided on : 12/06/2024
Duration : 05Y 01M 17D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT MAZGAON
SUMMONS FOR JUDGMENT NO.135 OF 2019
(CNR NO.MHCC01-004611-2019)
IN
SUMMARY SUIT NO.1439 OF 2018
Gutka Food & Nut Importers )
sole proprietary firm of C. P. Gutka HUF )
and through Karta Mr. Hitesh Chunilal Gutka )
Occ: Business, Office at Unit No.112, 1st Floor, )
A-2 Shah & Nahar Compound, )
Lower Parel – (West), Mumbai – 400 013. )...Plaintiff
VERSUS
1. M/s. Ahuja Properties & Associates,
A Partnership firm, carrying on its business at )
A1, Rajpipla, Main Avenue, Opp. Standard )
Chartered Bank, Santacruz (West), )
Mumbai – 400 054. )
2. M/s. Ahuja Properties & Associates, )
A Partnership firm, carrying on its business at )
A1, Rajpipla, Main Avenue, Opp. Standard )
Chartered Bank, Santacruz (West), )
Mumbai – 400 054. )
3. Mr. Jagdish Bhagwandas Ahuja, )
Occ: Business. )
4. Mr. Gautam Jagdish Ahuja, )
Occ: Business, Partner and Authorized )
Signatory of M/s. Ahuja Properties & )
Associates. Both residing at 701 Soona Villa, )
Cross Road, Bandra (W), Mumbai – 400 050. )...Defendants
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..2.. Summons for Judgment No.135/2019
Appearance :-
Learned Advocate Jeetendra Gupta for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 12/06/2024.
ORDER
1 The plaintiff has filed this suit for recovery of amount of
Rs.50,00,000/- alongwith interest and contended that defendant Nos.1
and 2 are construction companies and defendant Nos.3 and 4 are
partners and authorized signatories of defendant Nos.1 and 2
companies. Plaintiff is a sole proprietary firm of C. P. Gutka HUF and
Mr.Hitesh Chunilal Gutka is a Karta of the said HUF. Defendant Nos.3
and 4 requested plaintiff to advance friendly loan of Rs.50,00,000/- on
06/04/2015. Thus, plaintiff advanced the said loan amount through
cheque bearing No.225314 dated 06/04/2015 drawn on Canara Bank,
Mandvi Branch, Mumbai in favour of defendant No.1 and said cheque
amount is availed by the defendants and bill of exchange regarding the
receipt of loan amount dated 06/04/2015 is drawn in favour of
plaintiff. Defendant No.2 accepted the bill of exchange which was
executed by defendant No.1 and defendant Nos.3 and 4 have signed
being the authorized signatories and partners of defendant Nos.1 and 2
companies. Initially the defendants had paid the interest from time to
time and also issued cheque for the interest amount for the period of
2016-17, thereafter, they have not paid interest as agreed. The
defendants have admitted their liability to pay the said loan transaction
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..3.. Summons for Judgment No.135/2019
by signing Balance Confirmation statement for the period 2015-16,
2016-17 and 2017-18 respectively. Defendants had issued cheque
towards repayment, but it is dishonoured. Defendants thereafter, failed
to pay the amount of bill of exchange alongwith interest, therefore,
plaintiff had orally requested defendants to clear the outstanding. They
promised, but they did not pay the amount, therefore, plaintiff issued
notice, but in vain. Consequently, plaintiff filed this suit for recovery of
amount of Rs.50,00,000/- alongwith interest and calculated the
aggregate claim upto Rs.78,81,973/-.
2 In response to the writ of summons, defendants appeared,
thereafter, plaintiff took out summons for judgment. Defendants have
replied the summons for judgment denying the contention of plaintiff.
3 It is the contention of defendants that the suit is not
tenable as a summary suit and bill of exchange is not admissible in
evidence, as it is not having affixed proper stamp. They further took the
plea that plaintiff is carrying business of money lending and came
before the Court suppressing the material fact that he is carrying money
lending business. Defendants also took the plea that suit is not
maintainable as plaintiff has not advanced any friendly loan. It is
further contended that defendants have issued the cheque in favour of
plaintiff in good faith and security. They further took the plea that
plaintiff is not entitled to charge interest at the rate of 21.60% per
annum and submitted that the defendants are entitled for unconditional
leave to defend.
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..4.. Summons for Judgment No.135/2019
4 Heard learned advocate for plaintiff. The learned advocate
for defendants remained absent since long, therefore, matter proceeded
without argument of defendants. During the course of argument, the
learned advocate for plaintiff pointed out that defendant Nos.3 and 4
have been adjudged as insolvent. Further, plaintiff is relying on the
judgment passed by the Hon’ble Bombay High Court, which was
specifically filed against these defendants being Summons for judgment
No.60 of 2021 in Commercial Summary Suit No.68 of 2021 pronounced
on 01/09/2023, wherein the Court had clearly observed that defendant
Nos.3 and 4 have been adjudged as insolvent and considering the facts
and circumstances, the Hon’ble Bombay High Court pleased to decree
the suit in favour of plaintiff therein directing the defendants to pay the
amount of loan. Thus, it appears alike the cited case, the defendants
have also obtained loan from this plaintiff and now avoiding to pay the
amount of loan. It is to note that the fact that defendants have deducted
TDS for the amount paid towards interest paid.
5 So far as the objection raised regarding money lending is
concerned, it is to be decided at the time of trial. Likewise the issue
regarding entitlement of the plaintiff to claim the interest at the rate of
21.60% per annum, that also is to be decided at the time of trial. Thus,
defendants are entitled for leave to defend, but considering the fact that
they have admitted issuance of cheque of Rs.50,00,000/-, though they
are claiming that it is security loan, I am of the view that issuance of
cheque amounts that they have admitted their liability to pay the
amount of loan which is supported with execution of bill of exchange
and confirmation of statements by defendants for the financial year
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..5.. Summons for Judgment No.135/2019
2016-17. Thus, I am of the view that defendants are required to deposit
the principal loan amount of Rs.50,00,000/- as condition for leave to
defend, so as to enable themselves to raise defence. Consequently, I
proceed to pass the following order :
ORDER
1. Summons for Judgment No.135 of 2019 in Summary
Suit No.1439 of 2018, is disposed of in terms of
following order -
2. Leave is granted to the defendants to defend the suit
subject to the defendants depositing in this Court a
sum of Rs.50,00,000/- within a period of one month
from the date of order and shall file written statement
within 30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an ex-
parte decree against the defendants after obtaining a
non-deposit certificate from the PLA Section.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 12/06/2024. Court Room No.84
Dictated on : 12/06/2024.
Transcribed on : 13/06/2024.
Signed by HHJ on : 14/06/2024.
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..6.. Summons for Judgment No.135/2019
“Certified to be true and correct copy of the original signed order”.
14/06/2024
at about 5.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 12/06/2024
Order signed by Hon'ble Judge on : 14/06/2024
Order uploaded on : 14/06/2024
at about 5.45 p.m.
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