Final Order 1

Order Details: Other
Pdf Text: 1
MHCC010063922019
Presented on : 26/06/2019
Registered on : 26/06/2019
Decided on : 09/12/2021
Duration : Y M D
02 05 13
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.191 OF 2019
IN
COMMERCIAL SUIT NO.336 OF 2021
(SUMMARY SUIT NO.399 OF 2019)
Ms. Smita Ambalal Patel
a Senior Citizen, aged 63 years,
OccupationBusiness, having her
address at 147, Mahatma Gandhi Road,
Temple Bar Building, Second Floor,
Opp. Kala Ghoda, Fort, Mumbai 400 001. ..Plaintiff
VERSUS
Mr. Mangesh Munabhai Chokshi
adult, OccupationBusiness, having his
address at (i) 39, Sanskar Bharti Society,
Near Ankur Bus Sand, Narangpura,
Ahmedabad380013 AND
(ii) Mangesh Manubhai Chokshi
2217, Manek chowk, Chokshi Bazar,
Ahmedabad 380001. ..Defendant
______________________________________________________
Plaintiff in person.
Ld. Advocate Rushabh Thacker for defendant.
______________________________________________________
-- 1 of 12 --
2
ORAL ORDER
(Dated this 09th day of December, 2021)
1. Summons for Judgment is taken out by plaintiff for
decree of an amount of Rs.38,43,800/ alongwith future interest
at the rate of 18% p.a. from the date of filing of the suit till it’s
realization.
Briefly stated, plaintiff's case, is as under:
2. Suit is for recovery of an amount of Rs.38,43,800/.
Defendant Mangesh Chokshi was family friend of plaintiff's
parents. DefendantMangesh Chokshi used to take care of plaintiff
like his own sister. In the year 2015, defendant asked for a
friendly loan of Rs.25 lacs and assured to return it within three
months. Defendant further assured to pay interest at the rate of
18% p.a. in default of returning money within three months.
3. On 17/02/2016, plaintiff transferred an amount of
Rs.25 lacs by RTGS from her Savings Bank Account
No.23710014834 to defendant's Bank Account No.
010138230009284. Plaintiff made demand of said amount with
defendant from time to time. Upon which, defendant issued five
cheques of Rs.5 lacs each dated 07/11/2017, 08/12/2017,
09/01/2018, 10/02/2018 and 11/03/2018. Plaintiff approached
defendant every time before deposit of cheque, but, defendant
requested plaintiff to wait for sometime. Defendant also assured
to pay the amount with interest @ 18% p.a.
-- 2 of 12 --
3
4. On 28/01/2019, plaintiff visited defendant's home
and made demand of money. Defendant in presence of his wife
Mrs. Shilpa M. Chokshi and daughterinlaw Mrs. Ishani Darshil
Chokshi wrote a letter dated 28/01/2019 confirming that an
amount of Rs.25 lacs is outstanding to be paid to plaintiff with
interest. Plaintiff sent notice through her advocate on
04/02/2019. Said notice was duly served upon defendant, but,
defendant failed to repay the amount. Plaintiff is entitled to an
amount of Rs.25 lacs alongwith interest at the rate of 18% p.a. as
per the particulars set out in the particulars of claim. Defendant
has no defence. He has caused an appearance only to delay
hearing of the suit. By making all these submissions, plaintiff
prayed to decree the suit.
5. After service of writ of summons, defendant
appeared as contemplated under Order 37 Rule 2(3) of C.P.C. on
03/04/2019. Thereafter, plaintiff has taken out present summons
for judgment on 20/06/2019.
Defendant's reply :
6. Defendant by filing reply affidavit strongly resisted
summons for judgment. It is submitted that suit is filed by
suppressing material facts. This Court has no territorial
jurisdiction to try and entertain the suit. Suit is under valued.
For filing summary suit, there has to be a written contract.
Defendant has not executed letter dated 28/01/2019. Plaintiff
forged the said letter in order to file the suit as per Order 37 Rule
2 of C.P.C. No document is filed on record to show that
-- 3 of 12 --
4
defendant agreed to pay interest at the rate of 18% p.a.
7. Defendant issued five cheques of Rs.5 lacs each
against the said interest friendly loan to plaintiff, however,
plaintiff has not encashed those cheques for reasons best known
to her. Plaintiff realized that limitation period for presentation of
those cheques was lapsed and therefore, plaintiff forged letter
dated 28/01/2019. Plaintiff may file regular civil suit for
recovery of said amount. There is no written contract between
the parties. Defendant raised triable issues. By making these
submissions, defendant prayed for unconditional leave to defend
the suit.
Oral Submissions :
8. Plaintiff made following submissions:
i. Plaintiff paid an amount of Rs.25 lacs to defendant by RTGS.
Said aspect is not denied by defendant.
ii. Defendant issued five cheques of Rs.5 lacs each towards
repayment. Defendant has also not disputed the said fact.
iii. Plaintiff made demand of money with defendant and therefore
on 28/01/2019, defendant issued a balance confirmation
letter. Defendant in his reply affidavit denied issuance of said
letter, however plaintiff filed on record rejoinder affidavit.
Alongwith rejoinder affidavit, plaintiff filed affidavit of one
Ashwin Chokshi whose shop is next to defendant's shop.
Before Ashwin Chokshi, defendantMangesh admitted to have
executed letter dated 28/01/2019. Plaintiff has also filed on
record affidavit of one Raju Patel who also testifies that
defendant Mangesh Chokshi confirmed before him regarding
issuance of letter dated 28/01/2019. Defendant has not filed
on record any material contrary to these affidavits.
-- 4 of 12 --
5
iv. Defendant admitted receipt of an amount of Rs.25 lacs.
Defence taken out by defendant regarding forgery of the letter
is not substantiated by material on record. She placed reliance
upon following judicial pronouncements:
(i)M/s. Mechalee Engineers & Manufacturers V/s. M/s.
Basic Equipment Corporation, AIR 1977 SUPREME COURT
577 and
(ii) Jyotsna K. Valia V/s. T.S. Parekh & Co., 2007(4)
ALL MR 718.
9. By making above submissions, plaintiff prayed for
making the summons for judgment absolute and in the
alternative, submitted that leave to defend shall not be granted
unless defendant deposits the amount claimed in the decree.
10. Ld. Counsel for defendant made following
submissions:
i. This Court has no territorial jurisdiction to try and entertain
the suit.
ii. There is no written contract between the parties. Plaintiff
claimed interest at the rate of 18% p.a. However, there is no
material on record to show that defendant agreed to pay
interest at the rate of 18% p.a. Defendant has come with the
specific case that letter dated 28/01/2019 is forged by
plaintiff. In order to file summary suit under Order 37 Rule 2
of C.P.C. and to establish this defence, trial is necessary.
iii. Letter dated 28/01/2019 can only be considered as an
acknowledgment. This is not a written contract. Letter also
cannot be construed as promise to pay debt as the writing
does not contemplate promise to pay the amount. Therefore,
suit under Order 37 Rule 2 of C.P.C. cannot be filed on the
basis of letter dated 28/01/2019.
iv. Defendant raised the issues which require trial and therefore
unconditional leave to defend the suit may kindly be granted.
-- 5 of 12 --
6
11. Considered the submissions advanced on behalf of
both the sides. On perusal of reply affidavit, it is manifestly clear
that defendant did not dispute the fact that an amount of Rs.25
lacs was transferred by RTGS from plaintiff's account to his
account. Defendant also did not dispute issuance of five cheques
of Rs.5 lacs each towards repayment of said amount. Defendant
claims that he was ready to pay the amount by issuing the
cheques, but, plaintiff failed to encash those cheques for the
reasons best known to her.
12. Defendant claims that he was ready to pay the
amount by cheque, but, plaintiff failed to encash the five cheques
given by him. Per contra, plaintiff claims that defendant
requested her not to present the cheques.
13. As stated above, defendant claims that he was ready
to repay the loan of Rs.25 lacs and accordingly issued five
cheques of Rs.5 lacs each. Considering these averments in the
reply affidavit, it was incumbent upon defendant to show that he
was having sufficient balance in his account to honour the
cheques issued in favour of plaintiff and it was plaintiff's fault that
she failed to present the cheques for encashment. However,
defendant failed to file on record his bank account statements or
any other material to indicate that he was maintaining sufficient
amount in his bank account to honour the cheques issued in
favour of plaintiff. In the absence of any material on record with
regard thereto, it cannot be construed that plaintiff failed to
encash the cheques issued by defendant.
-- 6 of 12 --
7
14. Defendant raised the issue of territorial jurisdiction
and under valuation of the suit. These issues were also raised by
filing Notice of Motion No.3005 of 2019. Both these objections
were heard and decided in Notice of Motion No.3005 of 2019.
Again a last ditch effort was made on behalf of defendant to raise
the issue of territorial jurisdiction by filing Review application to
the Notice of Motion No.3055 of 2019. Said review application
was registered as Notice of Motion No.2055 of 2021. Said Notice
of Motion was also dismissed after hearing both the sides. Thus,
issues regarding territorial jurisdiction and under valuation of the
suit are already decided by the Court. Therefore, defendant
would be precluded from raising both these issues in order to
claim leave to defend the suit.
15. Plaintiff claims that defendant by executing letter
dated 28/01/2019 confirmed the outstanding amount. Copy of
said letter is filed on record. English translation of said letter is
also filed on record. During the course of hearing, defendant did
not dispute English translation of letter dated 28/01/2019. In
the said letter, defendant acknowledged that in his books he
owes an outstanding payable to plaintiff a sum of Rs.25 lacs. This
outstanding amount is payable as on 28/01/2019. Plaintiff in
para. No.5 of the plaint, specifically pleads that by executing a
writing dated 28/01/2019, defendant confirmed that amount of
Rs.25 lacs is outstanding to be paid to plaintiff with interest.
However, on perusal of English translation of the letter dated
28/01/2019 filed by plaintiff, it is clear as crystal, that the said
-- 7 of 12 --
8
letter is silent about payment of interest amount. It is not in
dispute that plaintiff transferred the amount of Rs.25 lacs to
defendant by RTGS on 17/02/2016. Plaintiff claims that
defendant executed balance confirmation letter dated
28/01/2019. The letter dated 28/01/2019 does not speak about
the rate of interest. Thus, from the material produced before the
Court, it can be inferred that there was no written contract,
between the parties, regarding the rate of interest.
16. Defendant challenged plaintiff's claim only on the
ground that letter dated 28/01/2019 is forged. However,
plaintiff's claim is not solely based upon letter dated 28/01/2019.
Plaintiff is coming with the specific case that she has transferred
the amount of Rs.25 lacs by RTGS to defendant and in order to
return the said amount, defendant issued five cheques of Rs.5 lacs
each. These facts are not disputed by defendant. Defendant
contends that in order to bring the suit within limitation, letter
dated 28/01/2019 is falsely prepared. Record shows that loan
amount of Rs.25 lacs was transferred in the bank account of
defendant on 17/02/2016 through RTGS and suit is filed on
14/02/2019. Thus, suit is also filed well within limitation from
the date of advancing loan amount. Therefore, the contention of
defendant that in order to bring suit within limitation, plaintiff
forged letter dated 28/01/2019, cannot be accepted.
17. Defendant submits that letter dated 28/01/2019 is
not a promise to pay debt, therefore, summary suit would not lie
on the basis of letter dated 28/01/2019.
-- 8 of 12 --
9
18. It is not in dispute that cheques issued by defendant
were not presented for encashment. Therefore, summary suit
would not lie on the basis of issuance of those cheques. Plaintiff
claims that by letter dated 28/01/2019, defendant confirmed
outstanding amount. Plaintiff relied upon the case of Jyotsna K.
Valia (cited supra). In this case, Hon'ble Bombay High Court
pleased to hold that summary suit on a settled account duly
confirmed by defendant is maintainable as it is an acknowledgment
by the defendant in the ledger in which mutual accounts have been
entered and the accounts are settled between them. On perusal of
letter dated 28/01/2019, it is evident that defendant
acknowledged that he owes an outstanding amount of Rs.25 lacs
to plaintiff in his books of accounts. Thus, by letter dated
28/01/2019, defendant acknowledged the outstanding amount in
his books of account. Said writing can also be considered as an
acknowledgment in writing which is preceded by two admitted
facts viz. (a) Transfer of an amount of Rs.25 lacs in the account of
defendant by RTGS (b) Issuance of five cheques of Rs.25 lacs
towards repayment of said amount of Rs.25 lacs. Therefore,
summary suit would certainly lie on the basis of writing dated
28/01/2019.
19. Defendant contends that letter dated 28/01/2019 is
forged. Plaintiff filed rejoinder affidavit and affidavit of two
witnesses before whom, defendant admitted to have executed
letter dated 28/01/2019. Defendant failed to bring on record any
counter version on oath which competes in probability. So also,
-- 9 of 12 --
10
defendant could not bring on record certain material to indicate
that letter dated 28/01/2019 is forged.
20. Plaintiff is claiming decree for an amount of
Rs.38,43,800/. Said amount includes interest at the rate of 18%
p.a. from the date of advancing loan. As stated above, plaintiff
failed to substantiate that defendant agreed to pay interest @
18% p.a. and there was a written contract to that effect, therefore
at this stage, plaintiff is not entitled for the decree of an amount
of Rs.38,43,800/ as prayed for. As discussed supra, defendant
failed to substantiate his defence and therefore, he is not entitled
to unconditional leave to defend the suit. Considering the facts
which came on record unscathed, a reference with profit can be
made to Second Proviso to Order 37 Rule 5 of C.P.C. which
provides whether part of the amount claimed by plaintiff is
admitted by defendant to be due from him, leave to defend the
suit would not be granted unless the amount so admitted to be
due is deposited by defendant in the Court. Plaintiff is a senior
citizen. Defendant admits receipt of amount on 17/02/2016 but,
failed to return the amount. From all above discussion, it is held
that defence raised by defendant is illusory or sham or practically
moonshine. However, by showing mercy to the defendant,
conditional leave to defend can be granted. Considering over all
facts and circumstances of the case, this Court would be well
justified in asking defendant to deposit the amount of Rs.25 lacs
in the Court within a period of 6 weeks from today in order to
-- 10 of 12 --
11
enable him to try to prove his defence. In the result, following
order:
ORDER
1. Defendant shall deposit a sum of Rs.25,00,000/
(Rs.Twenty Five Lacs only) in Court within a period
of 6 weeks from today. If this condition is compiled
with, defendant is granted leave to defend the suit
and he shall file Written Statement within a period of
30 days from the date of deposit.
2. If aforesaid condition of the deposit is not followed
by defendant within stipulated time, plaintiff shall be
at liberty to apply for exparte decree.
3. There shall be no order as to costs.
4. S/J No.191/19 is disposed of accordingly.
09/12/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 09/12/2021
Transcribed on : 10/12/2021
Signed on : 14/12/2021
-- 11 of 12 --
12
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
14/12/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
09/12/21
Judgment and order signed by P.O. 14/12/21
Judgment/order uploaded on 14/12/21
-- 12 of 12 --