Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 04.05.2018
Registered on : 04.05.2018
Decided on : 15.11.2021
Duration : 03Y, 06M, 11D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.154 OF 2018
(CNR NO.MH-CC01-006019-2018)
IN
SUMMARY SUIT NO. 94 OF 2018
(CNR NO.MH-CC01-011234-2018)
VINOD RAMESH TECKCHANDANI ]
of Bombay, Adult Indian Inhabitant ]
Residing at Flat No.16, 3rd Floor, ]
Shantivanam, Manual Gonsalves ]
Road, Bandra (West), ]
Mumbai-400050. ].. Plaintiff.
V/s.
VECTRA PROJECT LIGHTING ]
PVT. LTD., a Company incorporated ]
under the Companies Act 1956, ]
having its regiered office at ]
Unit No.5, Ground Floor, ]
Raghuvanshi Mills Compound, ]
S.B. Marg, Lower Parel (West), ]
Mumbai-400 013. ]..Defendant.
Advocate Mr. Shailesh Rajda I/b Advocate Mr. Surendra Raja for the
plaintiff.
Advocate Ms.Yasmin Bhansali a/w Ms. Prachi Singh for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 15th NOVEMBER, 2021
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JUDGMENT
The Summons for Judgement is taken out by the plaintiff in
a suit for recovery of amount of Rs. 16,40,000/– along with interest at
the rate of 24% per annum from 01/10/2017.
2. It is the case of plaintiff that, the defendant is a private
limited company. Plaintiff is holding 10% shares and Ms. Sonia Prakash
Chhabria the Director of the defendant is holding 90% shares in M/s
Shimera Project Lighting Pvt. Ltd. Ms. Sonia Chhabria has taken
disadvantage of the fact that she is major shareholder, in collusion and
connivance with Mr. Prakash Chhabria, has removed the plaintiff from
the directorship of that company. She wants to run that company as her
family company. The notice of such removal was not served upon the
plaintiff.
3. Plaintiff being a Director, was regularly attending the office
of that company and was receiving remuneration/share in profits. Sonia
Chhabra stopped of the remuneration/share in profits of the plaintiff
under the guise that the company is running into losses. The sales and
profits were shown in other sister companies in which Ms. Sonia
Chhabria holds the shares. The sales of this company were deliberately
shown as less with malafide intention and ulterior motive to deprive
plaintiff of his rightful dues. Mr, Prakash Chhabria was causing lot of
interference in the day-to-day business of the company. Plaintiff has
advanced huge sums to the company as a loan from Director. The
description of amounts is as under;
Sr.No. Date Amount (Rs.P.)
1 02.06.2012 5,00,000/-
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2 02.06.2012 5,00,000/-
TOTAL 10,00,000/-
4. Plaintiff has further stated that he repeatedly requested the
defendant to repay the loan amount to the plaintiff, but defendant
failed to pay the same. Plaintiff has further stated that the defendant
has failed to be abide by the terms and conditions of the Memorandum
of Understanding. The present directors of the company are cheating
plaintiff by making changes in the accounts. Plaintiff issued a notice to
defendant through his advocate on 05/08/2016 calling defendant to
pay the amount of Rs. 10,00,000/- along with interest thereon at the
rate of 24% per annum. Defendant replied the notice on 18/10/2016
and denied the claim of plaintiff. The defendant has claimed that, the
amount and remuneration of the plaintiff are adjusted against the
damages claimed by the defendant against the plaintiff. Plaintiff sent a
rejoinder to the notice reply of defendant and denied all the allegations
against him. Even the defendant had shown in the statement of
accounts submitted to the Registrar of Companies the amount of
plaintiff as outstanding and payable by the defendant to the plaintiff.
The defendant is liable to pay the amount of Rs. 16,40,000/– to
plaintiff. Defendant is liable to pay interest on the said amount at the
rate of 24% per annum. For all the above reasons, the plaintiff has
prayed for the decree.
5. Defendant appeared and filed reply to the summons for
judgement. The defendant has stated that the claim of plaintiff is not a
liquidated demand nor is it crystallised amount allegedly payable by the
defendant. There is no written contract. There is mis-joinder of causes
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of action. Therefore, the present suit is not maintainable. Defendant
has further stated that there is no agreement for payment of interest.
The suit is barred by limitation as alleged amounts were advanced in
the month of June 2012.
6. Defendant has further stated that the amount allegedly
paid by the plaintiff is towards capital contribution for which the shares
of defendant company are issued in favour of plaintiff. The conduct of
plaintiff as a shareholder of the defendant was such that it has hit a very
low point and has damaged the reputation of the defendants
organization. Plaintiff has disclosed confidential information of the
defendant to other companies for which the defendant is still sustaining
losses. Plaintiff commenced business relations conflicting with the
business interest of the defendant by starting a company by name
Lighting Mission Private Limited. Plaintiff indulged in direct
competition with the defendant by selling the same goods to the
defendant’s customers. Therefore, plaintiff was removed from the
directorship of the defendant.
7. Plaintiff issued a letter to defendant on 21/05/2015
admitting to have invested large sums of money in equity shares of the
defendant company. Therefore, plaintiff is not entitled to any interest
on the amount. Accordingly, plaintiff was removed from the directorship
of the defendant company. For all the above reasons the defendant has
prayed for dismissal of the summons for judgement and allowing him to
defend the suit.
8. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
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determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
decree as prayed for?
In the
Negative
2 Whether the defendant is entitled to the
leave to defend the suit?
In the
Affirmative
3 What Order? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
9. All 3 points are related to each other. Hence, they are
discussed at once.
10. Learned advocate for defendant has relied upon judgement
in the case of State Bank of Hyderabad v/s Rabo Bank reported in
(2015) 10 Supreme Court Cases 521. It is held that,
17. An analysis of the above principles makes it
clear that in cases where the defendant has raised a
triable issue or a reasonable defence, the defendant
is entitled to unconditional leave to defend. Leave
is granted to defend even in cases where the
defendant upon disclosing a fact, though lacks the
defence but makes a positive impression that at the
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trial the defence would be established to the
plaintiff's claim. Only in the cases where the
defence set up is illusory or sham or practically
moonshine, is the plaintiff entitled to leave to sign
judgment.
16. It is also noticed that the law as enunciated
above, has been followed by the courts in several
cases [see also Santosh Kumar v. Bhai Mool Singh
[AIR 1958 SC 321] , Milkhiram (India) (P) Ltd. v.
Chamanlal Bros. [AIR 1965 SC 1698] , Mechelec
Engineers & Manufacturers v. Basic Equipment
Corpn. [(1976) 4 SCC 687] and Sunil Enterprises v.
SBI Commercial & International Bank Ltd. [(1998)
5 SCC 354] ].
15. As regards the entitlement of a defendant to
the grant of leave to defend, the law is well settled
long back in the year 1949 in Kiranmoyee Dassi v.
J. Chatterjee [1945 SCC OnLine Cal 114 : AIR
1949 Cal 479] , in the form of the following
propositions: (SCC OnLine Cal para 42)
“(1) If the defendant satisfies the Court that he
has a good defence to the claim on its merits the
plaintiff is not entitled to leave to sign the
judgment and the defendant is entitled to
unconditional leave to defend.
(2) If the defendant raised a triable issue
indicating that he has a fair or bona fide or
reasonable defence although not a positively good
defence the plaintiff is not entitled to sign
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judgment and the defendant is entitled to
unconditional leave to defend.
(3) If the defendant discloses such facts as may
be deemed sufficient to entitle him to defend, that
is to say, although the affidavit does not positively
and immediately make it clear that he has a
defence yet shows such a stage of facts as leads to
the inference that at the trial of the action he may
be able to establish a defence to the plaintiff's claim
the plaintiff is not entitled to judgment and the
defendant is entitled to leave to defend but in such
a case the court may in its discretion impose
conditions as to the time or mode of trial but not as
to payment into court or furnishing security.
(4) If the defendant has no defence or the
defence set up is illusory or sham or practically
moonshine then ordinarily the plaintiff is entitled
to leave to sign judgment and the defendant is not
entitled to leave to defend.
(5) If the defendant has no defence or the
defence is illusory or sham or practically
moonshine then although ordinarily the plaintiff is
entitled to leave to sign judgment, the court may
protect the plaintiff by only allowing the defence to
proceed if the amount claimed is paid into court or
otherwise secured and give leave to the defendant
on such condition, and thereby show mercy to the
defendant by enabling him to try to prove a
defence.”
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11. Learned advocate for defendant further relied upon
judgment of the Hon’ble Bombay High Court in the case of Vinod
Tekchandani Vs Shimera Project Lighting Private Limited in Summons
For Judgement No.35 of 2018 in Commercial Summary Suit No. 51 of
2018. In that matter also plaintiff in the present suit had claimed
certain amounts from the said defendant and Hon'ble Lordship was
pleased to grant unconditional leave to defend as serious triable issues
were found.
12. It is the case of plaintiff that amount of Rs. 10,00,000/- was
advanced by him on 02/06/2012 as a loan from director. Plaintiff has
produced on record statement of his account. The statement shows that
the amount of Rs. 5,00,000/- each was transferred to the account of
defendant for 2 times. In the statement of accounts, the amount of Rs.
57,00,000/- is shown as loan borrowed by the defendant from the
director that is plaintiff. This amount is much more than the one
alleged by plaintiff in the present suit. It is the case of defendant that
the amount of Rs. 10,00,000/- is the capital investment made by the
plaintiff in the defendant company. Therefore, the shares equivalent to
that amount are issued in favour of plaintiff and plaintiff is not entitled
to get interest on the said amount. Whether the amount of
Rs.10,00,000/- each advanced by plaintiff towards the loan or it is a
capital investment of the plaintiff is a point to be decided after
recording the evidence of the parties. The amount alleged to be
advanced by the plaintiff and the amount shown as advanced in the
statement of accounts of the defendant are different. Therefore, this is
one of the triable issues raised by the defendant.
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13. Defendant has further alleged that the suit is barred by
limitation. As per the case of plaintiff the amount was advanced in the
year 2012. The suit is instituted in the year 2018. There was exchange
of notices in between. The first notice issued by plaintiff to defendant
appears to be on 12/08/2016. As per the case of defendant, plaintiff
was removed from the directorship of the defendant company in the
year 2015. In the circumstances, the demand raised by the plaintiff
appears to be after 3 years of advancing the loan. In the circumstances
it is necessary to record the evidence of the parties to see whether the
suit is barred by limitation or not. The limitation is a mixed question of
law and facts. This is the second triable issue, which is raised by the
defendant.
14. Defendant has come up with the case that the acts of the
plaintiff were detrimental to the interest of defendant. The plaintiff
formed another company and he was selling the goods same as of
defendant to the clients of defendant. Therefore, plaintiff was removed
from the directorship of the defendant. Defendant has further stated
that the outstanding towards the plaintiff was adjusted against the
damage caused to the defendant due to the acts of plaintiff. Admittedly,
there is no proceeding taken up by the defendant against the plaintiff
for recovery of the damages. In the circumstances, it becomes a matter
of evidence as to whether the amount due to the plaintiff was registered
by defendant against the amount of damages. This is the third triable
issue raised by the defendant in the matter.
15. In view of all above discussion, I have come to the
conclusion that there are serious triable issues in the present matter,
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which need to be decided on the basis of evidence recorded by both the
parties if any. Therefore, it is necessary to give opportunity to both the
parties to lead their evidence. In view of the nature of triable issues, in
my considered opinion, unconditional leave needs to be granted to
defendant to defend the suit.
14. In view of above discussion, I answer point No. 1 in the
negative, point No. 2 in the affirmative and in answer to point No. 3, I
proceed to pass following order.
O R D E R
1. Summons for Judgment is hereby dismissed.
2. Unconditional Leave to defend the suit is granted
to the defendant.
3. Summons for Judgment No.154 of 2018 is
disposed off accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 15.11.2021 Gr.Mumbai.
Dictated on: 15.11.2021
Typed on : 15.11.2021
Signed on : 18.11.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20.11.2021 AT 3.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
15/11/2021
Judgment/Order signed by P.O. on 18/11/2021
Judgment/Order uploaded on 20/11/2021
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