Final Order 1

Order Details: Other
Pdf Text: ..1.. SJ NO.202/19
MHCC010070122019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO. 202 OF 2019
(CNR NO.MHCC01-007012-2019)
IN
SUIT NO. 1261 OF 2018
Mr. Navaneeth Mahabal Bhatt )….Plaintiff
V/S
Mr. Vishwanath J. Shetty )….Defendant
Appearance :-
Adv. H.R. Shetty present for plaintiff.
Adv. Sanjay Prabhala h/f Dhananjay Pathak present for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 26/02/2024.
ORDER
This suit is filed for recovery of amount of Rs. 1,00,000/-. The
plaintiff has given amount of Rs. 1,00,000/- to the defendant as a
friendly loan and towards repayment of friendly loan issued cheque
dated 08/01/2018 of Rs. 1,00,000/- on presentation for encashment. It
is returned back on 16/1/2018 with the remark of insufficient funds.
The plaintiff issued notice calling upon to pay the amount but in vain.
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Defendant has neglected to pay the amount. Therefore plaintiff have
constrained to file instant suit.
In response to the writ of summons defendant appeared and
tendered his Vakalatnama. Thereafter, plaintiff took out the Summons
for Judgment and serviced upon the defendant, the defendant tender
reply to Summons for Judgment.
It is contention of learned Advocate for defendant that the
plaintiff had agreed to sell his car for Rs.4,00,000/- to the defendant
and the defendant paid 3,00,000/- in cash and 1,00,000/- by cheque
which is in question. It is contention of defendant, the plaintiff had
used said amount suit car more than one year, but avoided to hand
over the car. He further contended that the plaintiff had returned the
amount of Rs. 3,00,000/- cash, but failed to return the cheque. It is
further contended that the plaintiff misused the cheque and presented
it in the Bank. The cheque was not issues towards the repayment of
alleged loan and that cheque was written in two ink. It was issued as
and part payment of purchase car, lastly submitted that claim that
there is triable issue and prayed for unconditional leave.
Heard learned advocate for the plaintiff and learned advocate
for the defendant tendered written notes of argument.
It reveals from reply and written notes of argument that the
defendant admitted the issuance of cheque of Rs.1,00,000/- on dated
08/01/2018, however, he is denying that it is issue for repayment of
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loan amount. The plea raised that the cheque was issued towards the
part payment of purchase of car, but no proof brought on record so as
to substantiate this contention. The fact appearing on record that the
cheque is admittedly issued. Therefore the defendant neither can
challenge the issuance of cheque nor can issue claim that the cheque
cheque is reduced in two inks. The only issue is, whether the cheque is
issued in repayment of the loan amount or towards the part payment
of car. As the defendant admitted the issuance of cheque, I am of the
view that he has required to deposit the amount of the cheque so as to
raised the defence within stipulated period and to file written
statement.
The advocate for the plaintiff is relying on Judgment passed by
the Hon’ble Supreme Court in case of Ajitsingh Rathod V/s State of
Gujarat reported in 2024 IN 663 and insisting upon passing of decree
against the defendant. I have gone through the cited case, its relating
to the provisions of Section 391 of Code of Criminal Procedure. The
facts of cited case being criminal nature not applicable to this case so
as to the plaintiff to get the decree. It is well settled that leave to
defendant should be granted, where the defendant has raised the
defence as per the guidelines of Hon’ble Supreme Court in case B.L.
Kashyap Son’s and Ors V/s JMS Steel and Power corporation reported
in 2022 (3) SCC 294.
Considering facts of instant I am of the view that the defendant
is entitled for leave to defend upon depositing the amount under the
cheque. Hence, I proceed to pass following order:-
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ORDER
1. Summons for Judgment No.202 of 2019 in Summary
Suit No.1261 of 2018, is disposed of in terms of
following order -
2. Leave is granted to the defendant to defend the suit
subject to the defendant depositing in this Court a
sum of Rs.1,00,000/- within a period of one month
from the date of order and shall file written
statement within 30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an ex-
parte decree against the defendants after obtaining a
non-deposit certificate from the PLA Section.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon,
Mumbai, C.R. No.84.
Date: 26/02/2024.
Dictated on : 26/02/2024
Transcribed on : 26/02/2024
Signed by HHJ on : 26/02/2024
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“Certified to be true and correct copy of the original signed order”.
26/02/2024 (Amit Patil)
at about 05.20 p.m. Typed by Typist
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.84, Mazgaon,
Mumbai
Date of pronouncement of Order : 26/02/2024
Order signed by Hon'ble Judge on : 26/02/2024
Order uploaded on : U+00326/02/2024
at about 05.20 p.m.
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