Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.183/2019
MHCC010057092019 Presented on : 12/06/2019
Registered on : 12/06/2019
Decided on : 05/09/2024
Duration : 05Y 02M 24D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.183 OF 2019
(CNR NO.MHCC01-005709-2019)
IN
SUMMARY SUIT NO.1369 OF 2017
Anil Gopal Bajaj, Adult, Indian Inhabitant of Bombay,
carrying on business in the name and style of Big Apple
Plus, a Proprietary Concern as its Sole Proprietor at
Kalpataru Habitat Tower A, Flat 72/73, Dr. S. S. Rao
Road, Parel, Mumbai – 400 012.
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Versus
1. Milestone Interactive Private Limited, a Company
Registered under the Companies Act, 1956, carrying
on business at 702, Supreme Chambers Off. Veera
Desai Road, Andheri (West), Mumbai – 400 053 and
at Windermere, Bldg. No.1B/125, Near Oshiwara
Police Station, New Link Road, Andheri (West),
Mumbai-400 053 and now at Gala No.106, Building
No.11, 1st Floor, Arihant Commercial Complex,
Village Purna Bhiwandi, Thane, Maharashtra 421302.
2. Manisha J. Sharma, Adult, Indian Inhabitant of
Bombay, carrying on business and residing at
Windermere, Building No.1B/125, Near Oshiwara
Police Station, New Link Road, Andheri (West),
Mumbai-400 053.
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] ...Defendants
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..2.. Summons for Judgment No.183/2019
Appearance :-
Learned Advocate Kavita Lalwani for plaintiff.
Learned Advocate Sushant Murthy for defendant No.2.
(Absent on the
date of order.)
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 05/09/2024.
ORDER
1 Plaintiff has filed this suit for recovery of amount
contending that defendant No.1 drew a demand bill of exchange of
Rs.24,00,000/- and defendant Nos.2 has accepted the said bill of
exchange which is drawn on 26/02/2014. Plaintiff has paid an advance
amount of Rs.24,00,000/- to defendants by RTGS and defendants have
paid interest after deducting TDS. Thereafter, defendants have made
part payment of Rs.2,00,000/- each totaling Rs.16,00,000/- from
28/03/2014 to 28/10/2014 and agreed that they will repay remaining
Rs.8,00,000/- within short time. Defendants have thereafter paid
interest on 24/12/2014 of Rs.21,600/- after deducting TDS. Further,
defendants issued cheque of Rs.8,00,000/- on 13/02/2015 towards
repayment, which was dishonoured on presentation for insufficient
funds. Plaintiff presented the said bill of exchange for balance payment
of Rs.8,00,000/- to defendants, but they failed to make payment of
Rs.8,00,000/- alongwith interest. Thereafter, defendants made part
payment of Rs.28,000/-, but failed to pay the balance amount of
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..3.. Summons for Judgment No.183/2019
Rs.7,72,000/-. Consequently, plaintiff filed instant suit for recovery of
amount of Rs.7,72,000/- alongwith interest and calculated the claim to
Rs.11,42,000/-.
2 In response to the writ of summons, defendant Nos.1 and 2
appeared and tendered their vakalatnama, thereafter, plaintiff took out
instant summons for judgment and served upon them. Defendant Nos.2
appeared and resisted the contention of plaintiff in summons for
judgment. Defendant No.1 did not appear. It is the contention of
defendant Nos.2 that the suit is not maintainable as plaintiff is in money
lending business. Further she took plea that bill of exchange is not
properly stamped and it is not presented to them for payment. She
further contended that defendant No.1 went into winding up as per
order of the Hon’ble High Court. The defendant No.1 has undergone
liquidation, therefore, suit cannot be proceeded against them as per the
provisions of Companies Act. Defendant No.2 further contended that
she has signed the bill of exchange in capacity of director of company at
the sole insistence of plaintiff and prayed for rejection of summons for
judgment and grant of unconditional leave. Plaintiff rejoined to the
reply and denied the contentions of defendant No.2 and prayed for
rejection of her request for grant of unconditional leave.
3 Heard rival parties at length. Plaintiff as well as defendant
No.2 tendered written notes of argument in addition to oral
submissions.
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..4.. Summons for Judgment No.183/2019
4 It is not disputed to the plaintiff that defendant No.1
company is under liquidation and winding up proceeding is in progress.
It is contention of defendant No.2 that present suit is not maintainable
as plaintiff is in money lending business without license. Further, as per
the provisions of Maharashtra Money-Lending (Regulation) Act, no
decree can be passed, but it is incumbent on the defendants to establish
that plaintiff is in money lending business as per the guidelines
mentioned in case of Hon'ble Bombay High Court in the case of Mahesh
P. Raheja and others Vs. Base Industries Group and others passed in
Chamber summons No.488 of 2018 in Comm Execution Application No.
63 of 2017. Therefore, at the time of deciding summons for judgment
these objections cannot be taken into consideration.
5 Defendant No.2 has vehemently argued that the suit is not
maintainable as she is only signatory as director of the company, but on
perusal of bill of exchange it reveals that defendant No.2 has signed as
acceptor of the bill of exchange besides signatory as director of bill of
exchange. Plaintiff is relying on the judgment passed by Hon’ble
Supreme Court in case of Ashok Mahansing Bajaj H.U.F. Vs. Elegant
Pharmaceuticals Ltd. and others reported in 2000(3)BOMCR169. He
further submitted that he do not want to proceed against defendant
No.1 company which is winding up and relied on the cited case. I have
gone through the cited case, alike the case in hand in the cited case,
defendant No.1 was declared as sick company and other defendants
have signed the document as acceptor and guarantor and having
considered all the relevant provisions, the Hon’ble Lordship has held
that proceeding cannot be continued against defendant No.1 company,
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..5.. Summons for Judgment No.183/2019
but other defendants being acceptor of bill of exchange are
independently liable as principal debtor under Section 37 of Negotiable
Instrument Act. Thus, following observations and the order of Hon’ble
Supreme Court in cited case Ashok Mahansing supra, I am of the view
that defendant No.2 being acceptor of bill of exchange is independently
liable as principal debtor. It is to note that she has admitted that she has
signed the bill of exchange, which clearly shows that she has signed as
acceptor of the bill of exchange, therefore, she cannot deny her liability
to pay the balance amount under the bill of exchange.
6 It is vehemently argued by the learned advocate for
defendant No.2 that there is discrimination of loan terminology and he
has relied on the judgment passed by Hon’ble High Court in the case
Fauzan Shaikh Vs. State of Maharashtra passed in Criminal Public
Interest Litigation St. No.41 of 2019, I have gone through the cited case,
it is regarding the declaration of provisions of section 2(13) of
Negotiable Instrument Act, as ultravirus and in the cited case, the issue
which was discussed and answered which is not applicable to the
present case at the stage of deciding summons for judgment. Hence, I
am of the view that cited case will not help to the defendants.
7 Defendant No.2 has vehemently argued that she has
excellent case on merit and contended that the agreement is not
enforceable. The bill of exchange is having no sufficient stamp,
therefore, suit is not maintainable. Even if it is considered that the
contentions of defendant Nos.2 needs to be treated as triable issue,
defendant Nos.2 is liable to pay balance amount as she has signed bill of
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..6.. Summons for Judgment No.183/2019
exchange as director and acceptor of the bill of exchange, thus,
payment of amount under the bill of exchange is presumed to be
admitted to her. Hence, she is liable to pay the balance amount under
the bill of exchange to raise defence, as per the guidelines of Hon’ble
Supreme Court in the case of B.L. Kashyap and Sons Limited Vs. JMS
Steels and Power of Corporation and Another reported in (2022) 3 SCC
294. Considering the discussion, I am of the view that defendant Nos.2
is entitled for leave to defend on payment of balance amount under the
bill of exchange of Rs.7,72,000/-. Resultantly, I proceed to pass the
following order :-
ORDER
1. Summons for Judgment No.183 of 2019 in Summary
Suit No.1369 of 2017, is disposed of in terms of
following order -
2. Leave is granted to the defendant Nos.2 to defend the
suit subject to depositing in this Court a sum of
Rs.7,72,000/- within a period of one month from the
date of order and shall file written statement within
30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an ex-
parte decree against the defendant Nos.2 after
obtaining a non-deposit certificate from the PLA
Section.
5. Summons for judgment No.183 of 2019 stands
dismissed against defendant No.1.
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..7.. Summons for Judgment No.183/2019
6. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 05/09/2024. Court Room No.84
Dictated on : 05/09/2024.
Transcribed on : 05/09/2024.
Signed by HHJ on : 05/09/2024.
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..8.. Summons for Judgment No.183/2019
“Certified to be true and correct copy of the original signed order”.
05/09/2024
at about 5.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 05/09/2024
Order signed by Hon'ble Judge on : 05/09/2024
Order uploaded on : 05/09/2024
at about 5.15 p.m.
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