Order 2

Order Details: Other
Pdf Text: MHCC010049462018 Presented on 17/04/2018
Registered on 17/04/2018
Decided on 29/06/2024
Duration 06Y: 02M: 12D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 137 OF 2018
IN
SUMMARY SUIT NO. 227 of 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, ]
An adult Indian Inhabitant aged ]
about 43 years, residing at B-3, ]
Mahavir Smruti, Plot No, 122/123, ]
Garodia Nagar, Ghatkopar (E), ]
Mumbai- 400 077. ]... Defendant
Appearance:-
Ld. Advocate Sanjay Chaturvedi for the plaintiff.
Ld. Advocate Asha Shah for defendant.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 29/06/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 13/04/2018. Defendant filed his reply to the summons for
judgment and resisted it and prayed for unconditional leave to defend
the suit. The plaintiff has filed rejoinder to the reply given by the
defendant and defendant has filed sur-rejoinder by the defendant.
02] The Summons for Judgment No. 137/2018 was decided on
17/01/2022 and conditional leave to defend the suit. Defendant had
challenged the said order vide Review Petition No. 29/2022 before
Hon'ble Bombay High Court. The said Review Petition came to be
decided on 21/02/2022 and order dated 17/01/2022 on summons for
judgment came to be set aside with direction to decide it.
03] As per the plaintiff, it is a sole proprietor and carrying on
business of selling grains, pulses and dried fruits etc. Defendant is an
individual and carries his business in dried fruits and grains. As per
purchase order placed by the defendant, plaintiff used to supply goods
to the defendant. Accordingly, plaintiff has supplied goods to the
defendant between 16/03/2012 to 06/06/2012 for amounting to
Rs.64,19,275/-. The plaintiff has raised 40 invoices against said delivery
of goods to the defendant. The defendant had issued 34 cheques
towards security against delivery of said goods. The plaintiff requested
defendant to pay the amount however, defendant was avoiding to pay
the said amount therefore, he lodged complaint on 10/10/2014 at Tilak
Nagar Police Station, Ghatkopar against the defendant. The defendant
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agreed that he will pay amount within two months however, even after
lapse of six months, defendant failed to pay the outstanding amount
therefore, again on 07/02/2015 plaintiff lodged complaint against
defendant. Thereafter, defendant requested to plaintiff to withdraw the
complaint and issued three cheques of Rs. 20,00,000/-, Rs. 20,000/-
and Rs. 24,20,000/-. Further, on depositing said cheques in the bank it
were returned with remark, "Insufficient Funds". Therefore, plaintiff
issued demand notice dated 09/06/2015 to the defendant u/s. 138 of
Negotiable Instruments Act and called upon to pay outstanding amount.
The defendant given false reply to the said notice on 04/07/2015 and
contended that he has paid an amount of Rs.32,00,000/- on
09/03/2015 and Rs. 32,20,000/- on 13/03/2015 in cash. As defendant
failed to make the payment, plaintiff has lodged criminal complaint
bearing No. 918/SS/215, u/s. 138 of N.I. Act. Thus, the defendant is
liable to pay an amount of Rs. 64,20,000/- towards principal and 18%
p.a. interest thereon, total amounting to Rs. 95,41,703/-. It is further
contended that defendant has taken false defence that he has made the
payment and nothing is due. The plaintiff has asked inspection of
alleged notice of payment of Rs. 32,00,000/- and Rs. 32,20,000/- vide
letter dated 19/08/2019 however, till date no inspection is given.
Further, it is the contention of the defendant that suit is not
maintainable however, it is filed on the basis of dishonoured of cheques
therefore, it is maintainable. Further, issue of limitation is also raised by
the defendant however, it is filed within 3 years. Thus defendant has
not brought substantial defence on record. On the contrary, defendant
has admitted that he used to receive the goods however, he failed to
bring material on record that he has made the payments. Defendant has
not raised any substantial defence or any triable issue. Therefore,
defendant is not entitled for leave to defend the suit. Hence, summons
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for judgment may be allowed.
04] On the other hand, it is submitted by the defendant that
the plaintiff has filed suit on the false contentions and suppressed
material facts from the Court. The suit is not filed within limitation. It
was agreed between the plaintiff and defendant that after supply of
goods by the plaintiff, defendant used to issue cheque as security and
after making the payment, plaintiff will return the said cheques. The
defendant had issued alleged three cheques as plaintiff had contended
that 34 cheques given as a security are lost. Further, plaintiff has misued
said cheques given as security. Defendant has made payment of
Rs. 32,00,000/- and Rs. 32,20,000/- on 09/03/2015 and 13/03/2015
respectively against which plaintiff has issued receipts. Though, plaintiff
has demanded inspection, it has been informed to the plaintiff that said
receipts are lost and he has filed complaint at Azad Police Station.
Defendant had demanded to return said cheques issued as a security
however, plaintiff has refused to return the said cheques and misused it
by depositing it in the Bank. The plaintiff has filed false complaint
against the defendant u/s. 138 of N.I. Act. The plaintiff has no cause of
action against the defendant to file the present suit as nothing is due
against the defendant. It is his contention that as he has made payment
to the plaintiff though, he has denied the same thing. Therefore, it is a
triable issue. Further, suit is not within limitation and there is no cause
of action to file suit against defendant. Thus, defendant has raised
substantial defence and also triable issues therefore, he is entitled for
unconditional leave to defend. He has relied on ratio laid down in
Santosh Kumar vs. Bhai Mool Singh, AIR 1958 SC 321. Hence,
summons for judgment may be dismissed.
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05] Perused Summons for Judgment, reply of the defendant,
rejoinder by the plaintiff to the reply of the defendant and sur rejoinder
of the defendant to the rejoinder of plaintiff and documents on record. I
have gone through case law cited on behalf of the defendant. Heard
both the parties. On perusing contentions of both the parties, it appears
that it is not in dispute that there was agreement between the plaintiff
and defendant in respect of supply of goods and defendant used to issue
cheques as security. Even, plaintiff has admitted the said fact. Thus, the
transaction between the plaintiff and defendant is not denied.
06] As per the contention of the plaintiff, defendant had issued
34 cheques as a security against outstanding amount. Defendant has not
denied the same. As per the contention of the plaintiff defendant had
issued three cheques to discharge his liability. On the contrary, it is the
contention of the defendant that said cheques were issued as a security,
as plaintiff had told earlier cheques were lost. The plaintiff has denied
that said three cheques were issued as security. Further, on depositing
said cheques in the Bank it were returned with remark, "Insufficient
Funds". Therefore, plaintiff had issued notice under Section 138 of N.I.
Act on 09/06/2015. On the contrary, it is the contention of the
defendant that he had specifically mentioned in reply dated
04/07/2015 to said notice that an amount of Rs.32,00,000/- and
Rs. 32,20,000/- is paid to the plaintiff in cash on 09/03/2015 and
13/03/2015. It is the specific contention of the defendant that plaintiff
has issued receipt of said payments. The plaintiff had demanded
inspection of said alleged receipts vide letter dated 19/08/2019 issued
to the defendant. There is nothing on record that defendant has given
inspection of said receipts. On the contrary, it is the contention of the
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defendant that he has lodged complaint at Azad Police station in respect
of lost of said receipts. However, defendant has not brought any
material on record to substantiate his contentions except bare
contention. Admittedly, it is not the stage of proving facts or documents
however, there should be prima faice material to that defendant has
substantial defence to defend the suit. Therefore, with due respect I am
of the view that ratio laid down in case law cited supra on behalf of
defendant is not applicable to the facts in the present case and not
helpful to the defendant.
07] It is the contention of the defendant that it was agreed that
after making payment plaintiff will return cheque given as a security.
Further, it is the also the contention of the defendant that he had
requested plaintiff to return the said cheques however, he has not
returned said cheques and misused the same. It is the case defendant
ought to have taken any legal action against the plaintiff. There is
noting on record to show that defendant has taken any such efforts. On
the contrary, it appears that defendant has admitted his liability and had
issued cheques in favour of plaintiff to discharge said liability. The
plaintiff's suit is based on dishonour of cheques for the reason
'insufficient funds' in view of bank return memo dated 29/05/2015 and
present suit is filed on 12/02/2015. It appears from material on record
that defendant has not brought any substantial defence on record.
However, he has raised issue of limitation and he has made payment to
the plaintiff which are triable issues. These issues required to be
decided on merits after adducing evidence. Therefore, it is necessary to
grant leave to defend the suit to the defendant. However, it would be
proper to grant such leave subject to payment of some amount at least
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50% of principal amount. Hence, I proceed to pass following order.
ORDER
1) Summons for judgment No. 137/2018 in Summary Suit
No. 227/2018 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendant subject
to condition that he shall deposit 50% of principal amount
within 60 days from the date of this order.
(b) The defendant will be at liberty to file his written
statement on record within 30 days after depositing amount.
2) After depositing amount by the defendant, it be deposited in fixed
deposits in any Nationalized bank initially for a period of two
years and then subsequently, if required renew it every year.
3) No order to costs.
4) Summons for judgment No. 137/2018 is disposed off accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 29/06/2024 Court Room No.81
Dictated on : 29/06/2024
Corrected & signed on :03/07/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
03/07/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 29/06/2024
JUDGMENT/ORDER signed by P. O. on 03/07/2024
JUDGMENT/ORDER uploaded on 03/07/2024
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