Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment
No.184/2019
MHCC010057082019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.184 OF 2019
(CNR NO.MHCC01-05708-2019)
IN
SUMMARY CIVIL SUIT NO.454 OF 2018
BABAN DEVAJI JANKAR )..PLAINTIFF
VERSUS
PANIDEVI MADANLAL BAPNA )
@ JAIN )..DEFENDANT
Appearance :
Learned Adv. Ramesh Jain for plaintiff.
Learned Adv. Robin Thomas for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 18/08/2023
O R D E R
1 The plaintiff has filed this suit for recovery of amount of
Rs.1,00,000/- with interest at the rate of 18% per annum, from the
date of filing. The plaintiff has come with the case that he is a money
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No.184/2019
lender. The defendant is the mother of deceased Mukesh Madanlal
Bafna. The plaintiff is claiming that she is incharge of the estate of
deceased Mukesh Madanlal Bafna. It is the contention of the plaintiff
that the deceased Mukesh Madanlal Bafna and the defendant have
executed a demand promissory note of Rs.1,00,000/- in his favour,
who paid the said amount to the defendant and deceased. They agreed
to pay the interest at the rate of 18% per annum, but they failed to pay
on demand. The deceased and the defendant have neglected and failed
to pay the amount mentioned under the demand promissory note with
interest. The deceased in discharge of above liability issued post dated
cheque of Rs.1,00,000/-, however, it is dishonoured. After the death of
deceased Mukesh Madanlal Bafna, on inquiry the plaintiff came to
know that the defendant is the only legal heir of the deceased.
Therefore, he issued notice to the defendant to pay amount due, but in
vain. Thus, plaintiff has filed this suit for recovery of amount.
2 In response to the writ of summons, defendant appeared
and tendered her appearance, thereafter, the plaintiff took out
summons for judgment No.184/2019. After service of summons for
judgment, the defendant filed reply denying the contentions of the
plaintiff. It is her contention that she is not the only legal heir of the
deceased. She pointed out that the deceased was married to one
Anuradha and started residing separate from the defendant with wife
Anuradha and children. She further denied that she has signed the
promissory note. It is her contention that the plaintiff has forged her
signature, therefore, she prayed for dismissal of summons for
judgment and for grant of unconditional leave.
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3 Heard rival parties at length.
4 It seems from the argument of the defendant that she is
not denying the transaction between plaintiff and deceased son.
However, she denied her signature on the promissory note. It is the
contention of plaintiff that the signature on the promissory note is of
defendant, therefore, she cannot deny her liability to pay. It seems
from the record that the defendant is made party in dual capacity as
legal heir of the deceased and also as a signatory of promissory note.
The defendant has denied the signature and thumb impression on the
promissory note. It is pointed by the learned advocate of defendant
that the cheque is claimed to be issued by deceased, thereafter,
according to the defendant she has no concern with the transaction as
alleged by the plaintiff and she has triable issue. The defendant has
relied on the judgments passed by the Bombay High Court in the case
of Yallava Nagappa Kunchikorve Vs. Kantabai Malli reported in
2012(3) Mh.LJ 856 and in the case of Sha Damji Deraj Vs. Megraj
Bhikumchand and Co. reported in 1958 SCC Online Bom110 =
1958(60) Bom LR 1366.
5 Per contra, the plaintiff has relied on the judgment passed
by the Hon’ble Bombay High Court in case of Bank of India Vs. M/s.
Industrial Polymer reported in 1990 SCC Online Bom 450. I have
carefully gone through the cited case by plaintiff, the substantial issue
was whether the summary suit is maintainable against the legal heir of
defendant. After considering relevant provision it is held that the
summary suit as well as summons for judgment is maintainable against
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No.184/2019
the legal heir of deceased. However, after considering defence raised
by the legal heir of deceased, the Court has granted unconditional
leave to the legal heir of defendant. In the case in hand, the defendant
has claimed that the deceased Mukesh Madanlal Bafna was married
and having wife and children at the time of his death, therefore, his
wife and children are necessary party to the suit. The defendant is also
denying her thumb impression and signature on the promissory note.
Considering defence raised by the defendant, I am of the view that the
defendant has triable issue and she is entitled for unconditional leave.
Hence, I proceed pass following order :-
ORDER
1. Summons for Judgment No.184/2019 in Summary
Civil Suit No.454/2018, stands disposed of.
2. The defendant is granted unconditional leave to
defend.
3. The defendant shall file written statement within
stipulated period.
4. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 18/08/2023. C.R. No.15
Dictated on : 18/08/2023.
Transcribed on : 19/08/2023.
Draft corrected on : 19/08/2023.
Signed by HHJ on : 19/08/2023.
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No.184/2019
“Certified to be true and correct copy of the original signed order”.
19/08/2023 (Ms.Sonali Sawant)
at about 04.45 p.m. Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 18/08/2023
Order signed by Hon'ble Judge on : 19/08/2023
Order uploaded on : 19/08/2023
at about 04.45 p.m.
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