Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment
No.189/2019
MHCC010063362019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.189 OF 2019
(CNR NO.MHCC01-006336-2019)
IN
SUMMARY CIVIL SUIT NO.933 OF 2017
Rajkumar Mohansing Bajaj ).. Plaintiff
VERSUS
Livewel Aviation Services Pvt. Ltd.
and others ).. Defendants
Appearance :-
Ms. Kavita Lalwani, learned Advocate for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 26/10/2023.
O R D E R
1 This summons for judgment is taken out by plaintiff for
grant of decree for an amount of Rs.31,00,000/- along with interest
from the date of default. It is the contention of the plaintiff that the
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defendant Nos.1 and 2 have drawn a bill of exchange of
Rs.50,00,000/-. The bill of exchange of Rs.45,00,000/- is dated
26/10/2016 and bill of exchange of Rs.5,00,000/- is dated
11/01/2017. Defendant Nos.1 and 2 are the companies and defendant
No.3 is carrying business at defendant Nos.1 and 2. Defendants have
made part payment from time to time. However, the amount of
Rs.30,00,000/- remained unpaid and the defendants have admitted
this fact, but did not pay the balance of Rs. 30,00,000/- on the demand
bill due as on 26/10/2016. Thus, according to the plaintiff, he is
entitled for interest at the rate of 18% per annum from 26/10/2016. In
consequence of failure to repay, the plaintiff issued notice, the
defendants have not responded and hence, plaintiff was constrained to
file instant suit.
2 The defendants in response to the writ of summons,
tendered their appearance, thereafter, the plaintiff took out instant
summons for judgment. The defendant resisted the contention of the
plaintiff in suit and summons for judgment, and filed reply claiming
unconditional leave to defend. The plaintiff submitted his sur-
rejoinder. Defendants have sought time to file their sur-rejoinder, but
did not file, consequently, matter is ordered to be proceeded further for
hearing on summons for judgment. The defendants and their advocate
remained absent and did not advance their argument on summons for
judgment. Therefore, the matter is proceeded further for hearing of
plaintiff on summons for judgment.
3 The learned advocate for plaintiff submitted that the
defendants have admitted their liability to pay Rs.30,00,000/-. She
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pointed out the contention at paragraph No.14 of the reply, in which
the defendants have clearly admitted their claim of Rs.30,00,000/-. On
the perusal of the document annexed, it reveals that the defendants
have replied to the plaintiff through letters dated 02/05/2017 and
13/06/2017 and admitted the claim of plaintiff of Rs.30,00,000/-.
Thus, it is crystal clear from the record that the defendants have
admitted their liability to pay Rs.30,00,000/- as mentioned in the letter
of defendants dated 13/06/2017.
4 It reveals from the contents of the reply that the
defendants are raising objection that the bill of exchange is executed
on insufficient stamp and according to them, due to unstamped
document, they are not liable to pay the amount. This objection is
required to be decided at the time of admissibility of a document in
evidence, which is not possible at the time of deciding summons for
judgment.
5 It is the contention of defendants that they are entitled for
leave to defend as the bills of exchange are not properly stamped. For
the sake of their contention, even if it is presumed that they are
entitled for leave to defend, but as they have admitted their liability to
pay Rs.30,00,000/-, therefore, they are required to deposit the amount
admitted to avail the permission to leave to defend. I am fortified by
the judgment passed by Hon’ble Supreme Court in the case of B. L.
Kashyap & Sons Ltd. V/s M/s JMS Steels & Power Corporation & Anr.,
reported in AIR 2022 SC 785. In the cited case, it is observed by the
Hon'ble Supreme Court that leave to defend should be granted
generally, but when any party has admitted any amount of claim of
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plaintiff, the leave to defend is not to be granted unless the amount so
admitted is deposited by the defendant in the Court.
6 Considering the above observation, I am of the view that
the defendants are entitled for the leave to defend, subject to
depositing the amount admitted i.e. Rs.30,00,000/-, consequently, I
passed the following order :-
ORDER
1. Summons for judgment No.189/2019 in Summary
Civil Suit No.933/2017, is hereby partly allowed.
2. Defendants are granted leave to defend, subject to
depositing of amount of Rs.30,00,000/-, within one
month from the date of this order, in the Court.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit.
4. Defendants shall file written statement within 30
days, after depositing of amount of Rs.30,00,000/-.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 26/10/2023 C.R. No.15
Dictated on : 26/10/2023
Transcribed on : 26/10/2023
Signed on : 27/10/2023
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“Certified to be true and correct copy of the original signed order”.
27/10/2023
at about 4.55 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.15, Gr. Mumbai
Date of pronouncement of Order : 26/10/2023
Order signed by Hon'ble Judge on : 26/10/2023
Order uploaded on : 27/10/2023
at about 4.55 p.m.
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