Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.166/2018
MHCC010068322018 Presented on : 08/06/2018
Registered on : 08/06/2018
Decided on : 02/12/2024
Duration : 06Y 05M 25D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.166 OF 2018
(CNR NO.MHCC01-006832-2018)
IN
SUMMARY SUIT NO.807 OF 2017
Sanjaykumar Juharmal Shah (Jain) )
an adult, residing at 22/24, 2nd floor, )
Singapore Building, Vithalwadi, )
Champa Gali X Lane, Mumbai – 400 002, )
through his constituted attorney )
Shri Dilipkumar Juharmal Shah. )...Plaintiff
VERSUS
Mrs. Sushilaben Sureshkumar Shah, )
an adult, residing at 408, 4th floor, Saraf )
Mansion, Building No.32, Princess Street, )
Princess Co-op Housing Society, )
Mumbai – 400 002. )...Defendant
Appearance :-
Learned Advocate Ramesh Jain for plaintiff.
Learned Advocate Suresh Jain for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 02/12/2024.
-- 1 of 4 --
..2.. Summons for Judgment No.166/2018
O R D E R
1 Plaintiff has filed this suit for recovery of amount,
contending that in pursuant to the request of defendant, plaintiff has
advanced a sum of Rs.2,00,000/- through cheque which is honoured
and the amount is credited to the account of defendant on 02/04/2014.
According to the plaintiff, defendant has agreed to pay the said amount
with interest at the rate of 12% per annum. However, failed to repay as
agreed. Therefore, plaintiff issued notice through advocate on
18/11/2016, which is received to the defendant on 25/11/2016.
Defendant failed to reply the notice and to pay the amount as agreed,
consequently, plaintiff has filed this Suit for recovery of amount.
2 In response to the writ of summons, defendant tendered his
appearance, thereafter, plaintiff took out summons for judgment, which
was served upon the defendant. Defendant resisted the contention by
filing reply to the summons for judgment contending that the suit is not
maintainable under Order XXXVII Rule 2 of Code of Civil Procedure.
Defendant further took the plea that the suit is filed through power of
attorney which is insufficiently stamped. He further contended that
plaintiff is a money-lender without license and submitted that no
decreed be passed against defendant. Defendant also denied that the
amount of Rs.2,00,000/- is advanced to the defendant and ask the
plaintiff to prove its contention with strict proof and lastly, prayed for
dismissal of summons for judgment.
-- 2 of 4 --
..3.. Summons for Judgment No.166/2018
3 Heard rival parties at length.
4 Upon rival pleading, it reveals that the suit is based on
honoured cheque. I am enlightened by the judgment passed by the
Hon’ble Bombay High Court in the case of Jyotsna K. Valia Vs. T. S.
Parekh and Co. reported in 2007(3)BOMCR772, wherein it is held that
the a summary suit does not lie on the basis of honoured cheque. In
these circumstances, without going into the merit of the defence, I am
of the view that defendant is entitled for unconditional leave to defend
and suit is required to be tried as a regular Civil Suit. In the result, I
proceed to pass following order :-
ORDER
1. Summons for Judgment No.166 of 2018 in Summary
Suit No.807 of 2017, is hereby rejected.
2. Defendant is granted unconditional leave to defend.
3. Defendant is directed to file written statement within
stipulated period from the date of this order.
4. 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: 02/12/2024. Court Room No.84
Dictated on : 02/12/2024.
Transcribed on : 02/12/2024.
Signed by HHJ on : 03/12/2024.
-- 3 of 4 --
..4.. Summons for Judgment No.166/2018
“Certified to be true and correct copy of the original signed order”.
03/12/2024
at about 4.45 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 : 02/12/2024
Order signed by Hon'ble Judge on : 03/12/2024
Order uploaded on : 03/12/2024
at about 4.45 p.m.
-- 4 of 4 --