Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Summ. for Judg. 177/2021
In Comm. Sum. Suit 870/2021
MHCC010098012021 Presented on : 26/10/2020
Registered on : 18/12/2020
Decided on : 18/11/2022
Duration : 01Y/11M/00D
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
SUMMONS FOR JUDGMENT No.177/2021
IN
COMMERCIAL SUMMARY SUIT NO.870/2021
Pravin Kumar Jain HUF
Through its Karta and Manager Pravin
Kumar Jain, Age 65 years of Mumbai an
adult Indian Inhabitant having their address
and from Kalpataru Apartment, Flat No.5,
3rd Floor, 39, Deshmukh Marg, Peddar
Road, Mumbai 400026 ...PLAINTIFF
VERSUS
Nupur Ananjay Jain,
Age 36 years, an adult Indian Inhabitant,
having her address at Jai Sheel, N/H. 8,
Near Celebration Mall, Bhuvana Udaipur,
313001
...DEFENDANT
Ms.Ramesh Jain, advocate for Plaintiff.
Ms. Mansi Patel i/b. SRA Consulere, Advocates for Defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
J U D G M E N T
(Delivered on 18/11/2022)
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2 Summ. for Judg. 177/2021
In Comm. Sum. Suit 870/2021
Plaintiff has filed this Summons for Judgment under Order
XXXVII of CPC for claim of Rs.76,27,808/ and for further interest on
Rs.50,00,000/ @ 24% per annum from the date of filing of suit till
realization of the amount.
2] It is case of plaintiff that he is Karta and Manager of Pravin
Kumar Jain HUF. In November, 2015 defendant approached the
plaintiff and requested for financial assistance in the form of friendly
loan. Plaintiff advanced him loan of Rs.50,00,000/ on 18.12.2015 vide
RTGS. On 18.11.2015, defendant has executed Loan cum Guarantee
Agreement and demand promissory note in favour of plaintiff.
Defendant has paid part interest @ 18% p.a. Defendant requested the
plaintiff for time to repay the outstanding dues with interests. Plaintiff
time to time demanded the defendant the outstanding dues and accrued
interest, but he failed to repay the same.
3] Defendant has issued cheque dtd.07.10.2019 for
Rs.50,00,000/ and two cheques dtd.09.10.2019 for Rs.2,26,849/ each
towards the repayment of part outstanding dues. However, the said
cheques dishonored on 03.10.2019 due to “Funds insufficient”. Hence,
plaintiff has issued legal notice dtd.04.11.2019 to defendant and called
upon him to pay the outstanding amount of Rs.50,00,000/ and accrued
interest. Inspite of receipt of the said notice, defendant failed and
avoided to pay the said amount. Therefore, plaintiff has filed Complaint
under Sec.138 of N.I. Act. As on the date of filing suit, the defendant is
in outstanding as under:
Amount due as per writings/confirmations
dt.14/2018
Rs.62,19,863/
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3 Summ. for Judg. 177/2021
In Comm. Sum. Suit 870/2021
Plus: Interest @ 18% p.a. on Rs.50,000/ from
1/4/2019 till filing of suit.
Rs.14,07,945/
Total Rs.76,27,808/
4] 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.
5] Defendant filed reply (Exh.3) and contended that present
suit and summons for judgment are not maintainable. Plaintiff has
suppressed the agreement dt.18/11/2015. The said agreement is
unstamped/insufficiently stamped document. As per the said agreement
the amount was to be repaid within 75 days. The suit has been filed on
26/10/2020. Therefore, suit is barred by limitation. Plaintiff relied upon
confirmation of accounts dt.1/4/2019, is misplaced. The said
confirmation is not true and correct. The signature on the confirmation
of account dt.1/4/2019 is forged. Defendant has never signed the said
document. Upon receipt of the copy of plaint, defendant surprised that
her signature has been forged on the confirmation of account
dt.1/4/2019. Defendant relied upon the signature verification report
ref.no. SIF/DOC/2021/1077 issued by Sherlock Institute of Forensic
Science India, which proves that her signature on the confirmation of
account has been forged.
6] The said confirmation appears to have been addressed to
defendant in Udaipur, however how the said ended up with plaintiff in
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In Comm. Sum. Suit 870/2021
Mumbai has not been explained. Defendant denied that she has 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 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.
7] Defendant has not issued cheques to plaintiff for the
repayment of the alleged friendly 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. Defendant has good defence on merits.
Hence, she is entitled for unconditional leave to defend the suit.
8] 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 defendant is entitled for leave to
defend the suit ? ...Yes.
2. What order? ...As per final
order.
REASONS
As to point Nos.1 and 2 :
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In Comm. Sum. Suit 870/2021
9] 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,
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.
10] In the present case it seems that defendant has denied the
alleged agreement and according to her 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 defendant has raised triable issue.
11] Defendant also disputed the confirmation of balance
outstanding dues. Therefore, the said facts has to be decided on the
strength of evidence in trial. Defendant also raised issue of territorial
jurisdiction.
12] There are triable issues raised by the defendant has
contended in para supra. At the same time, it seems that defendant has
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In Comm. Sum. Suit 870/2021
issued cheque towards payment but the said cheque dishonored due to
funds insufficient. Therefore, it can be said that defendant has admitted
liability to pay to some extent.
13] Learned counsel of defendant submitted that the plaintiff
relied on loancumguarantee agreement dtd.18/11/2015 which is
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.
14] 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.
15] 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 defendant is entitled for conditional leave
to defend the suit. It would be justified to allow defendant to defend the
suit subject to condition that he shall deposit principal sum of
Rs.50,00,000/. Hence, I answer point No.1 in the affirmative.
16] The suit is based on agreement which is on insufficient
stamp under the Provisions of Maharashtra Stamp Act mentioned in
para supra. Therefore, the said agreement required to be impounded as
per Section 33 of the said Act. Hence, I pass following order.
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In Comm. Sum. Suit 870/2021
ORDER
1. A Summons for Judgment No.177 of 2021 is disposed of as
under.
2. Leave to defend the suit is granted to defendant subject to
condition that she shall deposit Rs.50,00,000/ within 30 days
from the date of this order. If this condition is complied,
defendant shall file her written statement within 30 days from
the date of deposit.
3. Agreement dtd.18/11/2015 is hereby impounded.
4. Registrar(Civil) is directed to forward the said agreement
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.
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In Comm. Sum. Suit 870/2021
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.
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