Interim Order 1

Order Details: Other
Pdf Text: MHCC010049462018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 137 OF 2018
IN
SUMMARY SUIT NO.227 OF 2018
CNR No. MHCC01-004946-2018
M/s. J.K. Dall Mill
A proprietorship concern, through its proprietor
Mr. Kishore Morarji Chheda an adult Indian
Inhabitant aged about 64 years, having shop No.
1, Veer Apartment, CHS, Opposite Somaiya
College, Rajawadi, 7th Road, Ghatkoper(East),
Mumbai-400 077.
... Plaintiff
V/s.
Mr. Harshvardhan Parikh
full name not known.
An adult Indian Inhabitant aged about 43 years,
residing at B-3, Mahavir Smruti, Plot No,
122/123, Garodia Nagar, Ghatkoper(E),
Mumbai- 400 077.
... Defendant
Appearance:-
Adv Ms. Shraddha Prajapati I/b Adv Mr. Parag Shah for the Plaintiff.
Adv Asha Shah for Defendant.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 17.1.2022
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant to pay a sum of Rs.95,41,703/- with the interest
@ 18% per annum on the principal amount of Rs.64,19,275/- as per
the particulars of claim.
2. Perused the documents on record.
3. The plaintiff has taken out this summons for judgment
against the defendant on the ground that the defendant failed to make
full payment of goods i.e dry-foods, grain and pulses etc. It is said that
the defendant approached to the plaintiff in the year-2019 for supply of
above said goods and become their regular customer. Somewhere in the
month of March-2012 he started asking to deliver the goods on credit
basis and the plaintiff became ready considering his assurances. In
between 16.3.2012 to 6.6.2012, plaintiff delivered and sold various
items of dry-foods, grains in 40 invoices to the defendant for the total
amount of Rs. 64,19,275/-. The same were accepted by the defendant.
He issued 34 cheques for said amount but the same were not deposited
by the plaintiff on the assurances given by the defendant. The
defendant miserably failed to pay the amount of goods sold to him. The
cheques issued by him from time to time got dishonored and the
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complainant lodged complaint against him. The cheques were issued for
the purpose of discharging the liability for payment of goods . However,
said cheques also got dishonored for the reason of insufficiency of
funds. Hence, the plaintiff prayed for issuance of summons for
judgment for the purpose of recovery of Rs.95,41,703/- with the
interest at the rate of 18% p.a on the principal amount.
4. The defendant appeared on Summons for Judgment and
filed reply/leave to defend on the following grounds:-
i) No cause of action arose against the defendants.
ii) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not attracted to the facts
and circumstances of the present suit.
iii) There was arrangement that plaintiff used to supply goods
and after receipt of the same defendant used to issue cheque as
security . It was agreed between the parties that on receipt of
payment for the goods sold , supplied and delivered, the plaintiff
will return the cheques issued by the defendants. However, the
plaintiff have neglected to return the cheques even after receipt
of payments by saying that due of repairing of shops the cheques
issued by the defendants are misplaced and assured that plaintiff
will not present it in the bank and on receipt of cheques he will
return it to the defendant. The suit is filed with malafied
intention to extort money from the defendant by taking
advantage of cheques lying with the plaintiff.
iv) The defendant has paid the outstanding amount of bills of
Rs.64,19,275/- by making payment in cash on dtd. 9.3.2015 and
13.3.2015. Therefore, no cause of action is made out by the
plaintiff against the defendant. The plaintiff has collected cash of
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Rs.32,00,000/- on dtd.9.3.2015 and again Rs.32,00,000/- in cash
on dtd. 13.3.2015. The receipts duly signed by plaintiff are
produced on record. After receipt of said amount the plaintiff
was supposed to return the cheques to the defendant . The
defendant had already discharged his legal debts. Therefore,
nothing is due and payable to the plaintiff by the defendant.
v) It is further contended that there was no concluded contract in
between the parties. The defendant has made out a prima facie
case of triable issues in the suit which needs to be adjudicated.
5. In support of said contentions the defendant has placed
reliance on the authority in the case of State Bank of Hyderabad V/s.
Rabo Bank AIR 2015, SC 3820. In this authority it has been held that,
“the appellant has made out a prima facie case of triable issues in the
suit which needs to be adjudicated. Therefore, the defendant is entitled
to grant of unconditional leave to defend the suit”.
6. I have gone through the leave to defend application moved
by the defendant. There are certain settled principles on the basis of
which the leave to defend application can be decided by the court. I
would like to quote the landmark authority on said principles. The
Principles as to grant of leave to defend in summary suit are curled out
in IDBI Trusteeship Services Ltd V/s. Hubtown Ltd reported in 2017 (1)
SCC 568. The same are reproduced here for the sake of convenience :-
“17. Accordingly, the principles stated in para 8 of Mechelec
case will now stand superseded, given the amendment of order 37 Rule
3 and the binding decision of four Judges in Milkhiram case, as
follows :
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17.1 If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he has
a fair or reasonable defence, the plaintiff is not entitled to sign
judgment, and the defendant is ordinarily entitled to unconditional
leave to defend.
17.3 Even if the defendant raises triable issues, if a doubt is left
with the trial Judge about the defendant’s good faith, or the
genuineness of the triable issues, the trial Judge may impose conditions
both as to time or mode of trial, as well as payment into court or
furnishing security. Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such triable issues are not
shut out by unduly severe orders as to deposit or security.
17.4 If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode
of trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or security
or both can extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
17.5 If the defendant has no substantial defence and / or raises
no genuine triable issues, and the court finds such defence to be
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frivolous or vexatious, then leave to defend the suit shall be refused,
and the plaintiff is entitled to judgment forthwith.
17.6 If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit,
(even if triable issues or a substantial defence is raised), shall not be
granted unless the amount so admitted to be due is deposited by the
defendant in court.”
7. We have to analyse the present set of facts in order to
determine which principle is attracted here.
8. I have perused the contents of the Plaint, leave to defend,
grounds made therein. It is pertinent to note that the defendant has
produced copies of two receipts allegedly signed by the plaintiff
acknowledging the receipt of Rs.32,00,000/- respectively on dtd.
9.3.2015 and 13.3.2015 in cash alongwith other documents. It
transpires further that after receipt of reply of defendant, the plaintiff
has filed rejoinder to said reply and submitted that the defendant made
this defence of payment in cash on dtd.9.3.2015 and 13.3.2015 in the
reply for the first time. Hence, the plaintiff through his advocate had
sent a inspection letter dtd.19.8.2019 to the advocates of the
defendants for inspection of all original documents referred and replied
by the defendant in affidavit reply. The notice is not replied by the
advocate for the defendant. The inspection of documents is pending till
date. Therefore, the receipts allegedly signed by the plaintiff regarding
payment of Rs.32,00,000/- on dtd. 9.3.2015 and Rs.32,00,000/- on dtd.
13.3.2015 cannot be relied upon. No such payment is received by the
plaintiff.
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9. After receipt of said rejoinder, the defendant again filed sur-
rejoinder stating that the receipts are lost by him and he have lodged
report of the same with Aazad Maidan Police Station.
10. It is pertinent to note that in the leave to defend
application, the defendant has taken a substantial defence of no liability
on the ground of payment of Rs.64,00,000/- in cash to the plaintiff. It is
brought on record by the plaintiff that only xerox receipts of said
payment are placed on record. The original are not produced by the
defendant for their inspection though they issued notice for inspection
to the defendant. The defendant has come up with the defence in sur-
rejoinder that original receipts are lost. However, this fact is not
disclosed by him, either in the reply or in any communication made to
the plaintiff. Therefore, presently we cannot blindly believe the reply of
the defendant that he made entire payment of Rs.64,00,000/- to the
plaintiffs and therefore no legal liability arose against him.
11. However, it appears that the defendant has raised different
triable issues. On perusal of leave to defend moved by the defendants it
transpires that they have raised objection to the tenability of the suit
and denied the suit claim in toto. However, on perusal of leave of
defend application, it appears that there must be some transaction in
between the parties. Said transaction is not disputed by the defendant.
Everything is not in air. There are many questions put forth by the
parties. The questions are whether any cause of action arose for the
filing of the suit, whether the provisions of Order XXXVII are attracted
or not and whether plaintiff is entitled for recovery or not. The
submissions and contentions made by the defendant in leave to defend
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application leads to the inference that the defendants have plausible
defence and the controversy has to be decided on merit. To my mind
Present case may come within the preview of clause 17.3 of the
authority of IDBI Trusteeship as cited supra. Further, I hold that the
authority cited supra, by the advocate for defendant is applicable here
regarding putting triable issues by the defendant.
12. This Court neither intend to comment on the merits of the
case as this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. It
is also necessary to adjudicate the case on the basis of evidence as to
find out as to whether defendant is liable to pay the amount claimed by
the plaintiff or not. The issues so raised can not be brushed aside on the
count of procedure of summary suit.
13. In this background, I hold that the that defendant has
successfully made out a case to allow them to leave to defend this suit,
however, some doubt is certainly left regarding genuineness of triable
issues. The doubt so left cannot act to shut out the triable issues put-
forth by the defendant. Therefore, I have arrived at the conclusion that
defendant should be allowed leave to defend subject to deposit of
security amount. The amount of Rs.5,00,000/- as security will suffice
the ends of the justice.
14. In consequence, I hold that the Summons for Judgment is liable
to be dismissed. Hence, the following order is passed.
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ORDER
1. Summons for Judgment No.137 of 2018 is dismissed.
2. Leave to defend the suit is granted to the defendant
subject to deposit of amount of Rs.5,00,000/- within four
weeks in court from the date of this order in Summary
Suit no. 227/2018.
3. Defendant is further directed to file written statement on
record within four weeks from the date of this order.
4. Costs in cause.
5. Summons for Judgment No.137/2018 is disposed off
accordingly.
Date:17.01.2022.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 17.01.2022
Typed on : 17.01.2022
Signed on : 19.01.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.01.2022 04.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
17.01.2022.
JUDGMENT/ORDER signed by
P.O.on
19.01.2022.
JUDGMENT/ORDER uploaded on 19.01.2022.
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