Final Order 1

Order Details: Other
Pdf Text: MHCC010056052019
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER MUMBAI
SUMMONS FOR JUDGMENT NO. 182 OF 2019
IN
NOTICE OF MOTION NO.2645 OF 2019
IN
SUMMARY SUIT NO. 60 OF 2018
Surendra S. Khajanchi, Through Attorney
holder, Uttam S. Khajanchi, 4/5, Kosarbi
Estate, S.K.Bole Road, Dadar (W), Mumbai-
400 028.
...Plaintiff
VERSUS
1. M/s. Veg King Agro Food process
Pvt.Ltd. Through its Director, Pradeep D.
Landge, G.No.330, Pilanwadi, Takliphata,
Post: Rahu, Taluka: Dhaund, Dist: Pune-
412 207.
2. Pradeep D. Landge, Survey No. 616/2,
Final Plot No.101, Taradutta Park, Pune-
Saswad Road, Taluka: Purandar, Pune-412
301.
...Defendants/Applnts in NM
No.2645/19
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Appearance :
Ld. Adv. Mr. Vijay Ghedia i/b. Adv. Rakesh Sawant for plaintiff.
Ld. Adv. Mr. Rahul Kadam for defendants/Applnts.
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 02-05-2023.
ORAL ORDER
(Dictated and pronounced in Open Court)
Plaintiff has taken out present Summons for Judgment (SJ)
as per sub rule (4) of Rule 3 of Order XXXVII of Code of Civil Procedure,
1908 (hereinafter referred as ‘CPC’ for short) and thereby claims
Judgment against defendants for recovery of principal sum of
Rs. 25 lakhs with further interest thereon along with at the rate of 21 %
per annum.
Plaintiff’s case-
2. Plaintiff claims to have paid and invested a sum of Rs.35
lakhs in some project of defendant No.1 company. It is contended that
defendant No.2 had introduced himself as a director of defendant No.1
company and had made several representations to the plaintiff about
the business transactions undertook by defendant No.1. He promised
good returns, after initial lock-in period of two years. Defendant No.2
had offered his personal guarantee in the capacity of Promoter/Director
of defendant No.1 company. He also guaranteed refund of amount even
if the project fails or suffer losses. Plaintiff has detailed the payment of
aforesaid 35 lakhs to the defendants in para No.4 of the plaint. The
said payment is of year 2008.
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3. It is further contended that, after payment of the said
amount, defendants failed to materialize the project and defendants
failed to provide reasons or details thereof. Therefore, plaintiff sought
refund of the amount. Defendants some how repaid Rs.10 lakhs on 15-
03-2013, however failed to pay remaining principal amount of Rs. 25
lakhs and interest thereon.
4. Plaintiff contends that in October 2013, owing to
precarious financial position of defendant No.1 and after negotiations
with defendant No.2, plaintiff agreed to settle the dispute by accepting
Rs.25 lakhs, towards full and final settlement.
5. It is contended that despite promise, defendants failed to
repay the amount and thereby constrained plaintiff to issue demand
notices on 19-07-2016, 13-10-2016 & 31-12-2016. Defendant No.1 by
its reply dated 10-02-2017 falsely denied liability and failed to repay
the amount. Hence, the present suit.
6. By way of present SJ plaintiff claims decree forthwith. It is
contended that defendants have no defence at all and hence no leave to
defend may be granted.
Defendants’ case-
7. Defendants have objected the SJ and sought unconditional
leave to defend by filing Notice of Motion No. 2645/2019 (NM).
Plaintiff has filed reply to the same and disputed the contentions of the
defendants.
The important contentions of defendants can be enlisted as under-
i) The present summary suit is not based on any negotiable
instrument or on written contract, enactment or on guarantee.
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Hence, suit is not maintainable in view of rule 1 (2) of Order
XXXVII of CPC.
ii) Defendants’ company is having registered office in Pune district
and no cause of action has took place at Mumbai. As such, there
is no jurisdiction to this Court.
iii) That there is no privity of contract between plaintiff and
defendant No.2. Suit is filed on false pretext of guarantee of
defendant No.2.
iv) The family members of plaintiff are the directors of defendant
No.1 company and they used to operate transactions of defendant
No.1. Plaintiff has not made them party defendant and therefore
there is bar of misjoinder.
v) The suit is hit of law of limitation. The alleged payment is of
2008, however the suit is filed in the year 2018, same is beyond
limitation.
vi) There are various substantial and triable issues involved in the
matter and therefore, leave to defend needs to be granted.
Points for consideration-
8. Heard both the sides. Perused documents placed on record
by either side. Following points arise for my determination. I have
recorded findings thereon along with reasons, as under :-
Sr. No. Points Findings
1. Whether defendant is entitled for
leave to defend ?
Yes, unconditional leave
to defend is granted to
the defendants.
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If yes, conditional or unconditional?
2. What order ? SJ is rejected.
REASONS
As to Point No.1-
9. It is settled position of law that while dealing with the
Summons for Judgment viz-a-viz leave to defend, Court is not supposed
to delve deep on merits of either side. The court is expected to examine
whether the defendant raises substantial defence or some issues which
needs to be tried. With a view to examine this aspect, it is necessary to
ponder at the contentions and documents relied upon by both the sides.
10. Heard both sides. Mr. Vijay Ghediya, learned advocate for
plaintiff, took this court to the pleadings and the documents filed along
with the plaint. He submits that the amount of Rs. 35 lakhs is paid by
the plaintiff on the account of defendant No.1, owing to assurances by
defendant No.2. Defendants have not disputed the receipt of the said
amount. So also an amount of Rs.10 lakhs is also repaid on 15-03-2013.
The Bank pass book details in that regard are already placed on record.
Defendants have not disputed the fact of part repayment. Thus, a
balance amount of Rs. 25 lakhs is due and outstanding from the
defendants. The defence tried to be raised is frivolous and moonshine,
hence the NM be rejected and SJ be made absolute.
11.
Per contra, Ld adv Mr. Rahul Kadam for defendants points
out various contentions raised by defendant No.2 by way of NM. He
submits that the suit is hopelessly time barred. There are no details
regarding the purpose for which the alleged investment was made by
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the plaintiff, plaintiff has not explained what business was to be started.
This
prima facie shows falsity of plaintiff’s claim.
12. Mr. Kadam submits that plaintiff, vide reply to the NM has
admitted that his family members were directors in defendant No.1
company, though he denies that defendant No.1 suffered losses due to
them. No document of alleged personal guarantee of defendant No.2 is
placed on record by the plaintiff, thus the said contention of plaintiff is
misleading and without any support. He thus prays to grant
unconditional leave to defend.
13. On perusal of the documents placed on record, it can be
seen that in para 2 of the plaint, plaintiff contends that sometime in
May 2010, he came with contact with defendant No.2 and thereafter he
invested the amount. However, in para 4 it appears that Rs.35 lakhs is
paid by the plaintiff in year 2008. Thus, this is surprising and against
very pleading of plaintiff. Further, plaintiff alleges personal guarantee
offered by defendant No.2 against the investment made by him,
however no such document is placed on record to boost said contention.
14. So far as issue of limitation is concerned, I find merit in the
contention of defendants. Admittedly, the amount of 35 Lakhs are paid
by plaintiff to defendant No. 2 in year 2008 (as documents shows), the
alleged repayment of Rs.10 lakhs is of March 2013, whereas the
demand notice is of July, 2016 and the suit is filed in the December
2017. No sufficient explanation is forthcoming for such delay on the
part of plaintiff to reclaim the amount invested/paid by him. Thus,
prima facie issue of limitation needs to be considered by the Court.
15. It appears that there are six Directors in defendant No.1
company and defendant No.2 is one of them. This fact is not sufficiently
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denied by the plaintiff. It also appears that some family members of
plaintiff were the Directors of defendant No.1 company and none of
them is made party to the present suit. Thus, this factual position needs
to be ascertained during trial.
16. The present suit is filed under rule 2 order XXXVII of CPC,
however the suit
per se is not based on any written promise or contract.
Neither any negotiable instrument is the basis of the suit. Even if the
contention of plaintiff about repayment of certain amount to defendant
and claiming repayment against it is considered, still I find that the
necessary conditions to file summary suit, as required under sub rule
(2) of rule 1 of CPC, are not attracted. Thus, this again give rise to a
triable issue.
17. In view of the aforesaid position, I find defendants succeed
to point out various triable issues involved in the suit. Those issues
certainly requires detailed reply/written statement of the defendants.
Hence, I find this to be a fit case to grant unconditional leave to defend.
Hence, I answer point No.1 accordingly.
As to Point No.2-
18. As unconditional leave to defend is granted, consequently,
Summons for Judgment is bound to be dismissed.
19. It is made clear that observations made in this order are
prima facie and without prejudice to the rights of the parties in trial.
Hence, the order.
ORDER
1. Summons for Judgment No.182 of 2019 stands rejected.
2. Unconditional leave to defend is granted to the defendants.
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3. Defendants to file Written Statement within four weeks,
excluding the period of intervening vacation.
4. Notice of Motion No. 2645/2019 is allowed and disposed of
accordingly.
5. Summons for Judgment No.182 of 2019 is disposed of
accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 02-05-2023. Court Room No.61
Dictated on : 02-05-2023
Printed on : 02-05-2023
Signed on : 02-05-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02-05-2023 at 5.45p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
02-05-2023
JUDGMENT/ORDER signed by P. O. on 02-05-2023
JUDGMENT/ORDER uploaded on 02-05-2023
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