Interim Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
MHCC010098022021 Presented on : 26/10/2020
Registered on : 18/12/2020
Decided on : 18/11/2022
Duration : 1Y/11M/0D
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
SUMMONS FOR JUDGMENT No.176/2021
IN
COMMERCIAL SUMMARY SUIT NO.869/2021
Pravin Kumar Kishanlal Jain
Age 65 years of Mumbai an adult Indian
Inhabitant having address at Kalpataru
Apartment, Flat No.5, 3rd Floor, 39, Deshmukh
Marg, Peddar Road, Mumbai – 400026.
...PLAINTIFF
VERSUS
(1) PSS Marmi Granites LLP
Is a partnership firm registered under relevant
Partnership LLP Act, having address at G
1/202, Udyog Vihar, Sukher, Udaipur,
Rajasthan 313004.
(2) Sanjay Kumar Jain
An adult Indian inhabitant partner of PSS
Marmi Granites LLP having address at at G
1/202, Udyog Vihar, Sukher, Udaipur,
Rajasthan 313004.
Residing at Jai Sheel, N/H. 8, Near Celebration
Mall, Bhuvana Udaipur, 313001
(3) Pallavi Sanjay Kumar Jain
An adult Indian inhabitant partner of PSS
Marmi Granites LLP having address at at G
1/202, Udyog Vihar, Sukher, Udaipur,
Rajasthan 313004.
Residing at Jai Sheel, N/H. 8, Near Celebration
Mall, Bhuvana Udaipur, 313001
-- 1 of 9 --
2 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
(4) Nupur Jain
An adult Indian inhabitant one of the
Guarantor of PSS Marmi Granites LLP,
Residing at Jai Sheel, N/H. 8, Near Celebration
Mall, Bhuvana Udaipur, 313001
(5) Ananjay Jain
An adult Indian inhabitant one of the
Guarantor of PSS Marmi Granites LLP,
Residing at Jai Sheel, N/H. 8, Near Celebration
Mall, Bhuvana Udaipur, 313001
(6) Sushila Devi Jain
An adult Indian inhabitant one of the
Guarantor of PSS Marmi Granites LLP,
Residing at Jai Sheel, N/H. 8, Near Celebration
Mall, Bhuvana Udaipur, 313001
...DEFENDANTS
Ms.Ramesh Jain, advocate for Plaintiff.
Ms. Mansi Patel i/b. SRA Consulere, Advocates for Defendants.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
J U D G M E N T
(Delivered on 18/11/2022)
Plaintiff has filed this Summons for Judgment under Order
XXXVII of CPC for claim of Rs.54,08,203/ and for further interest on
Rs.30,00,000/ @ 24% per annum from the date of filing of suit till
realization of the amount.
2] It is case of plaintiff that defendant no.1 is a LLP
partnership firm. Defendant no.2 & 3 are partners of defendant no.1.
Defendant no.4 to 6 are guarantors to loan to the defendant no.1. In
December, 2016 defendants were facing financial difficulties. Since
defendants were known to plaintiff, they approached the plaintiff and
-- 2 of 9 --
3 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
requested for financial assistance in the form of temporary business
loan. Plaintiff has advanced loan of Rs.30,00,000/ to defendant no.1
on 21/12/2016 vide RTGS. Defendant no.1 agreed to repay the same
with interest @ 24% p.a. within 75 days. The borrowers and guarantors
had assured and promised the plaintiff to repay the loan and interest
amount timely as mutually agreed. Accordingly, loan cum guarantee
agreement dt.16/12/2016 was executed. Subsequently defendants have
paid part interest and issued confirmation of accounts from time to
time. Lastly on 1/4/2019 they issued confirmation of principal sum due
of Rs.30,00,000/ and interest.
3] Defendants requested the plaintiff vide letter dt.14/4/2018
to reduce the interest @ 18% p.a. instead of 24% p.a. for financial year
201718. They also requested that this is one time request and gave
undertaking that difference of 6% will be compensated in following
financial year and in future for financial year 201819 onward rate of
interest would be 24% p.a. Defendants requested the plaintiff for time
to repay the outstanding dues with interests. Plaintiff time to time
demanded them the outstanding dues and accrued interest, but he
failed to repay the same.
4] Defendants have issued cheque dtd.30.9.2019 for
Rs.30,00,000/ towards the repayment of part outstanding dues.
However, the said cheques dishonored on 23.10.2019 due to “Funds
insufficient”. Hence, plaintiff has issued legal notice dtd.2.11.2019 to
defendants and called upon them to pay the outstanding amount of
Rs.30,00,000/ and accrued interest. Inspite of receipt of the said
notice, defendants failed and avoided to pay the said amount.
Therefore, plaintiff has filed Complaint under Sec.138 of N.I. Act. As on
-- 3 of 9 --
4 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
the date of filing suit, the defendants are in outstanding as under:
Amount due as per writings/confirmations
dt.14/2018
Rs.42,81,847/
Plus: Interest @ 18% p.a. on Rs.50,000/ from
1/4/2019 till filing of suit.
Rs.11,26,356/
Total Rs.54,08,203/
5] Plaintiff contended that this suit is for recovery of amount
due under negotiable instrument. There is no defence to the suit.
However, defendant entered appearance in the suit only with a view to
cause delay and prolong the passing of decree. Hence, plaintiff filed this
summons for judgment.
6] Defendants have filed reply (Exh.3 & 4) and contended
that present suit and summons for judgment are not maintainable.
Plaintiff has suppressed the agreement dt.16/12/2016. The said
agreement is unstamped/insufficiently stamped document. The suit is
barred by limitation because the alleged agreement was executed on
16/12/2016, the amount was advanced on 21/12/2016 and the suit
has been filed on 26/10/2020.
7] Plaintiff relied upon confirmation of accounts dt.1/4/2019,
is misplaced. The said confirmation is not true and correct. The said
confirmation appears to have been addressed to defendant no.1 in
Udaipur, however how the said ended up with plaintiff in Mumbai has
not been explained. Defendants denied that they sent such confirmation
by post to plaintiff. The custody of the said confirmation with plaintiff
without any supporting letter and/or post or email raises serious doubts
on the veracity of the said confirmation. The confirmation letter
mentions that “kindly return three copies stating your IT Permanent A/C
-- 4 of 9 --
5 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
No. duly signed and sealed in confirmation of the same. Please note that if
no reply is received from the defendant within a fortnight, it will be
assumed that you have accepted the balance shown below.” The veracity
of the said confirmation is a triable issue as the same does not appear to
be genuine.
8] Suit is bad for misjoinder of parties as the plaintiff has
joined the alleged guarantors i.e. defendant no.4 to 6 to this suit.
Defendants have not issued cheque to plaintiff for the repayment of the
alleged loan. The claim of plaintiff is disputed and involves questions of
law and fact which are triable in nature and can only be decide after
trial. Defendants have good defence on merits. Hence, they are entitled
for unconditional leave to defend the suit.
9] Considering the contentions in plaint and defence raised by
the defendant, following points arise for determination of this court and
recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether defendants are entitled for leave
to defend the suit ? ...Yes.
2. What order? ...As per final
order.
REASONS
As to point Nos.1 and 2 :
10] Heard counsel of both the parties. Recently, Hon’ble
Supreme Court in case law of B.L. Kashyap and Sons Ltd. Vs. M/s.
JMS Steels and Power Corporation and Anr. : (2022) 3 SCC 294,
-- 5 of 9 --
6 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
held that,
It would not be a correct approach to proceed as if denying leave
is the rule or that leave to defend is to be granted only in
exceptional cases or only in cases where defence would appear to
be meritorious one. On the issue of raising of triable issues, if
defendant indicates that he has a fair or reasonable defence, he is
ordinarily entitled to unconditional leave to defend unless there
be any strong reason to deny leave.
Even if there remains a reasonable doubt about probability of
defence, sterner or higher conditions could be imposed while
granting leave to defend but, denying leave would be ordinarily
countenanced only in such cases where defendant fails to show
any genuine triable issue and court finds defence(s) to be
frivolous or vexatious.
11] In the present case it seems that defendants have denied
the alleged agreement and according to them it is unstamped and
therefore it is not admissible in evidence. Plaintiff is relied on the said
agreement. Hence, alleged agreement has to be proved on basis of
evidence in trial. Thus, it seems that defendants have raised triable
issue.
12] Defendants also disputed the confirmation of balance
outstanding dues. Therefore, the said facts has to be decided on the
strength of evidence in trial. Defendants also raised issue of territorial
jurisdiction.
13] There are triable issues raised by the defendants as
contended in para supra. At the same time, it seems that defendants
have issued cheque towards payment but the said cheque dishonored
due to funds insufficient. Therefore, it can be said that defendants have
admitted liability to pay to some extent.
-- 6 of 9 --
7 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
14] Learned counsel of defendant submitted that the plaintiff
relied on loancumguarantee agreement dtd.16/12/2016 and financial
agreement joint venture cum guarantee agreement dtd.19/7/2017
which are insufficiently stamped. Therefore, the said documents
required to be impounded. Article 5(h) (iv) of the Maharashtra Stamp
Act, 1958, provided rate of stamp duty in respect of creation of any
obligation, right or interest and having monetary value, but not covered
under any other article, the stamp duty to be paid is 0.1% of the
amount agreed in the contract subject to minimum of rupees 100 and in
any other case 2% of the amount agreed in the contract.
15] If agreement is unstamped or not properly stamped, then it
would be inadmissible in evidence. Therefore, it is a triable issue and it
needs to be determined in the light of evidence of parties.
16] There remains a reasonable doubt about probability of
defence. Thus, in view of above cited case laws and facts of this case, I
come to the conclusion that defendants are entitled for conditional
leave to defend the suit. It would be justified to allow defendants to
defend the suit subject to condition that they shall deposit principal sum
of Rs.30,00,000/. Hence, I answer point No.1 in the affirmative.
17] The suit is based on agreements which are on insufficient
stamp under the Provisions of Maharashtra Stamp Act mentioned in
para supra. Therefore, the said agreements required to be impounded as
per Section 33 of the said Act. Hence, I pass following order.
ORDER
1. A Summons for Judgment No.176 of 2021 is disposed of as
-- 7 of 9 --
8 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
under.
2. Leave to defend the suit is granted to defendants subject to
condition that they shall jointly and severally deposit
Rs.30,00,000/ within 30 days from the date of this order. If this
condition is complied, defendants shall file their written
statement within 30 days from the date of deposit.
3. Agreement dtd.16/12/2016 and 19/7/2017 are hereby
impounded.
4. Registrar(Civil) is directed to forward the said agreements
to the Superintendent of Stamps/Collector of Stamps Mumbai for
impounding the same.
5. The Superintendent of Stamps/Collector of Stamps
Mumbai (Adjudication Authority) shall adjudicate stamp duty
and penalty if any, within 45 days from the date of receipt of
said document. Upon adjudication, the said authority shall
communicate the order to Registrar(Civil), City Civil Court, Gr.
Mumbai with a copy to advocate of plaintiff, defendant No.1 & 2.
6. Plaintiff shall pay amount of stamps duty alongwith
penalty if any, within 15 days from the date of receipt of order of
Adjudication Authority.
Date :18/11/2022.
(N.P. TRIBHUWAN)
Judge, City Civil Court,
(C.R.No.32), Mumbai.
-- 8 of 9 --
9 Summ. for Judg. 176/2021
In Comm. Sum. Suit 869/2021
Dictated on : 18/11/2022.
Checked on : 18/11/2022.
Signed on : 18/11/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18/11/2022. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 18/11/2022.
Order signed by P.O. on 18/11/2022.
Order uploaded on 18/11/2022.
-- 9 of 9 --