Final Order 1

Order Details: Other
Pdf Text: MHCC010066082019 Presented on 29/06/2019
Registered on 29/06/2019
Decided on 15/02/2025
Duration 05Y: 07M: 16D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO.192 OF 2019
IN
SUMMARY SUIT NO. 179 of 2021
Mr. Santosh Rajarao Katta ]
Age: 38, Occupation : Service ]
Residing at Room No. 209, ]
Building No. 20 Pratiksha Nagar, ]
Opp. Madhu Chaya Building, ]
Sion - Koliwada, Mumbai - 400022. ]..Plaintiff
Versus
Mr. Pravin Babulal Jain ]
Age: 36 year, Occ: Business ]
Residing at Room No. 2, 1st floor, ]
Building No. C - Block, 1st Lane, ]
Kamathipura, Mumbra - 400008. ]...Defendant
Appearance:-
Ld. Advocate Noman Jafri for the plaintiff.
Ld. Advocate Prakash Solaskar for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 15/02/2025.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 26/03/2019. Defendant filed his reply on affidavit to the
summons for judgment and resisted it and prayed for dismissed of
summons for judgment.
02] As per the plaintiff, his father is owner of Flat bearing No.
405, 4th Floor, Shivam Building, 11th Lane, M.R. Road, Near Nagpada,
behind Samrat Hotel, Mumbai (suit flat). Further, defendant was in
need of residential premises. Therefore, plaintiff and defendant
executed Leave and Licence Agreement on 15/11/2011 wherein
defendant had paid an amount of Rs. 6,50,000/- towards security
deposit was not paying monthly license fees. It is contention of plaintiff
that during the subsistence of said Leave and License Agreement, father
of plaintiff refunded an amount of Rs.3,00,000/- by cheque to
defendant on 07/08/2012 and balance amount was Rs. 3,50,000/- was
with plaintiff. Thereafter, again on 01/10/2012 Leave and License
Agreement was executed for 22 months between plaintiff and
defendant wherein an amount of Rs. 3,08,000/- was considered as
advanced payment of monthly license fees towards 22 months, and
balance amount of Rs. 42,000/- was with as security deposit. Further,
on 01/08/2014, again Leave and License was executed considering
balance of Rs. 42,000/- as security deposit between wife of plaintiff and
defendant. In the year 2013, defendant was in need of money therefore,
plaintiff advanced friendly loan of Rs. 5,50,000/- some amount in cash
and some by cheque. Accordingly, defendant has executed promissory
note. Further, to discharge said legal liability defendant issued cheque
dated 10/06/2015 for an amount of Rs.5,00,000/- which was
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dishonured for reason "other reason". Therefore, plaintiff issued
demand notice dated 10/08/2015 to defendant and called upon to pay
the outstanding amount however, to which defendant had replied on
27/08/2015 and taken false defence that plaintiff had stolen his
cheque. Plaintiff has lodged complaint u/s.138 of Negotiable
Instruments Act against defendant wherein he is acquitted vide
Judgment dated 08/11/2017. As defendant failed to pay the
outstanding amount, plaintiff is entitled for principal amount and
interest @ 18%p.a, total amounting to Rs. 8,52,500/-. It is further
submitted that defendant has come with a false defence that plaintiff
has stolen his cheque. It is his further defence that he has never issued
any cheque. However, plaintiff has filed original documents including
promissory note and cheque issued by defendant which has
presumption that defendant has admitted liability. Hence, summons for
judgment may be allowed.
03] On the other hand, it is argued on behalf of defendant that
he had executed Leave and Licence Agreement with plaintiff for period
of 11 months from 15/11/2011 to 14/10/2012 and paid advance
amount of Rs. 6,50,000/- towards security deposit. However, he has
denied that an amount of Rs. 3,00,000/- was refunded to him by father
of plaintiff. It is contended that another leave and license agreement
was executed for period of 22 months and licensee fees was agreed
Rs. 14,000/- per month. Thereafter again Leave and License agreement
was executed between wife of plaintiff and defendant on 01/11/2014
for period of 11 months. It is further submitted that he was never in
need of money and not borrowed amount of Rs. 5,00,000/- from
plaintiff. It is further submitted that he had paid an amount of
Rs. 2,00,000/- to plaintiff and plaintiff has issued two cheques dated
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30/01/2013 and 02/11/2013 to repay the said amount. It is further
submitted that the cheque of defendant was stolen by plaintiff
therefore, he has lodged complaint on 04/02/2015 to the Andhra Bank
and on 27/05/2015 to Nagpada Police Station. It is further submitted
that plaintiff had filed complaint u/s. 138 of Negotiable Instruments Act
bearing no. 1205/SS/2015 against defendant where he is acquitted.
Further, in said complaint plaintiff has stated that he had advanced an
friendly loan of Rs. 5,00,000/- however, in the present suit hs is pleaded
that he had advanced loan of Rs. 5,50,000/-. The defendant has denied
that he has executed any promissory note and further submitted that
said note is fabricated and false. The plaintiff failed to prove that he had
advanced loan to the defendant in the criminal complaint. The
defendant is not liable to pay any amount to the plaintiff. The
defendant has raised strong defence that his cheque was stolen and as
well as he was acquitted from criminal complaint. Therefore, he is
entitled for unconditional leave to defend the suit. Hence, summons for
judgment may be dismissed.
04] Perused summons for judgment, reply and documents on
record. Heard both the parties. It is not disputed that there was an
agreement executed between plaintiff and defendant i.e. Leave &
License Agreement and it was extended for 3 times. The said Leave and
License Agreements are filed on record vide Exh. 3/1 to 3/4. It is also
not disputed that defendant had paid security deposit of Rs. 6,50,000/-.
Plaintiff has contended an amount of Rs. 3,00,000/- was refunded to
the defendant by cheque on 07/08/2012 and to support his contention
filed copy of Passbook vide list Exh. 3/2. On perusing said pass book, it
appears that amount of Rs. 3,00,000/- is credited in the name of
defendant.
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05] It is the contention of plaintiff that defendant was his
tenant. Further, he had paid an amount of Rs. 5,50,000/- as a friendly
loan to the defendant out of which some of amount paid in cash and
some of by cheque. Plaintiff has filed some statement issued by Axix
Bank on record vide list Exh. 4/5. On perusing said certificate, it
appears that it shows that an amount of Rs. 2,0,000/- by cheques and
Rs. 50,000/- in cash was paid to defendant. There is no statement of
bank or any other document at this stage to show that plaintiff has paid
an amount of Rs. 5,50,000/-. However, plaintiff has filed declaration
cum promissory note executed by defendant on record vide list
Exh. 4/6. It is the defence of defendant that said promissory note is
false and fabricated and it does not bear his signature. It is the
contention of defendant that in criminal complaint, plaintiff has
contended that he has given friendly loan of Rs. 5,00,000/-. Further, it
is the contention of the plaintiff that defendant had issued cheque of
Rs. 5,00,000/- lakhs to discharge his liability which defendant has
specifically denied. Defendant has filed photocopy of criminal
complaint No. 1205/SS/2015 (Exh. C of reply) filed by plaintiff against
defendant. On perusing said complaint, it appears that it is contended
that he had advanced friendly loan of Rs. 5,00,000/-. It is not disputed
that in said complaint defendant is acquitted. Further, it is the defence
of defendant that plaintiff had stolen his cheque. Therefore, he had
made complaint to Aandhra Bank on 04/02/2015 (Exh. A to reply) that
the his cheque book is stolen and requested stop payment. Even,
defendant has made complaint to the Nagpada Police Station on
27/05/2015 that plaintiff had misused said cheque.
06] On perusing record, it appears that plaintiff has filed suit
on the basis of promissory note dated 28/10/2013. As per plaintiff
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cause of action arose on the date of execution of said promissory note
and than on date of issuance of cheque dated 10/06/2015. Further, it
arose on 27/08/2015 when defendant denied his liability. The suit is
filed on 27/08/2018. The defendant has raised substantial defence of
limitation. Further, defendant has raised defence that said cheque is not
issued by him however, it is stolen by plaintiff. The plaintiff has also
pointed out that plaintiff has two contrary version regarding alleged
friendly loan i.e. whether Rs. 5,50,000/- or Rs. 5,00,000/-. Even, he has
raised triable issue of tenability of suit as he is acquitted in complaint
filed by plaintiff against him under Section 138 of N. I. Act. Therefore, I
am of the view that defendant has made out substantial defence and
also raised triable issue whether suit is maintainable for want of
limitation. These issues needs adjudication. Therefore, I am of the view
that defendant is entitled for unconditional leave to defend the suit.
Hence, I proceed to pass following order :-
ORDER
1] Summons for judgment No. 192/2019 is disposed off as follows:-
(a) Defendant is granted unconditional Leave to defend the suit
and directed to file written statement on or before next date.
2] Summons for judgment No. 192/2019 is disposed off accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 15/02/2025 Court Room No.81
Dictated on : 15/02/2025
Corrected & signed on : 20/02/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
20/02/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 15/02/2025
JUDGMENT/ORDER signed by P. O. on 20/02/2025
JUDGMENT/ORDER uploaded on 20/02/2025
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