Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010073732019
CNR NO. MHCC010073732019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1321 OF 2019
IN
S.C. SUIT NO.1019 OF 2017
Sanjiv Mulchand Sawla ]… Plaintiff
V/s.
1. M/s. Bhalani Book Corporation & ANR. ]...Defendants.
Appearance:
Mr. A.K. Singh Learned Adv. for the plaintiff.
Ms. Rekha Shinde, Learned Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 15th February, 2021
ORAL ORDER
1. Defendant No.2 took out this Chamber Summons to reject
the plaint under Order VII Rule 11 of the Code of Civil Procedure.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons and affidavit in reply of the plaintiff. Heard
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Learned Advocate Mr. A.K. Singh for plaintiff and Learned Advocate Ms.
Rekha Shinde for defendants.
3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether plaint can be rejected under
Order VII Rule 11 of the Code of Civil
Procedure?
In the negative.
2. What Order ? Chamber Summons
is rejected as per
final order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the defendant No.2 that, plaintiff
averred in the plaint that plaintiff gave friendly loan on interest.
Plaintiff did not aver in the plaint that he knew the defendant prior to
the suit transaction. Plaintiff did not aver in the plaint that defendant
was his friend. There is formal document on record to show that there
is loan transaction and to secure the repayment a blank cheque was
taken as a security. Therefore transaction in the plaint clearly shows
that it is money lending transaction. Plaintiff did not aver that plaintiff
has money lending license. Plaintiff has filed eight suits against this
defendant and other persons. Out of the said eight suits six suits are
pending before this Court. Plaintiff has done money lending business
without a money lending license. Father of the plaintiff namely
Mulchand Savla admitted in the cross examination in the case filed
under Section 138 of Negotiable Instruments Act that he has given loan
through finance broker Hans Deep Finance Corporation to the
defendants.
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5. Plaintiff also admitted in the cross examination in Criminal
Case No.3077/SS/2017 that he had met the defendant for the first time
on the date of his cross examination. Therefore, the plaint is liable to
be rejected under Order VII Rule 11 of the Code of Civil Procedure as
barred by Maharashtra Money Lending (Regulation) Act, 2014. It is
further contention of the defendant No.2 that as per Section 13 (1) of
Maharashtra Money Lending (Regulation) Act, 2014 no decree can be
passed in such suit therefore, plaint be rejected.
6. In brief, it is contention of the plaintiff that all the
contentions raised in the plaint be treated as a part and parcel of this
reply. All other adverse contentions are denied. This Chamber
Summons is filed to prolong the matter. Defendants are already served
with writ of summons. Plaintiff has taken out Summons for Judgment.
Plaintiff has also taken out Notice of Motion for attachment of the
property of the defendant. Summons for Judgment and the Notice of
Motion are pending. The plaint shows that defendant had taken
friendly loan and therefore, Chamber Summons be dismissed.
7. The Learned Advocate appearing for plaintiff filed copy of
the order dated 27.09.2011 in the Chamber Summons No.105 of 2011
passed by (Mr. Ashish Aggarwal) Civil Judge-1, South West District,
Dwarka Courts, Delhi. He submitted that a person does not become a
money lender merely by advancing loan on interest on isolated
occasions. He also stated isolated transaction of money lending does
not attract the requirement of registration as a money lender so as to be
able to recover the debt.
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8. Perused plaint. Plaintiff specifically averred in para No.2 of
the plaint that defendants demanded friendly loan from him for their
business purpose with agreed rate of interest at the rate of 1% per
month and executed promissory note accordingly.
9. I have gone through Order VII Rule 11 of the Code of Civil
Procedure. As per the said provision Court has to consider only plaint
and documents relied therein at the time of deciding the application
under Order VII Rule 11 of the Code of Civil Procedure. Therefore, at
this stage documents beyond the plaint can not be considered. The
plaint shows that Plaintiff has to prove that he has given friendly loan to
the defendants. Therefore, plaint can not be rejected as prayed for.
Hence, I record my findings to point No.1 in the negative and point
No.2 Chamber Summons is rejected. Therefore, following order:
ORDER
1. Chamber Summons no. 1321 of 2019 in Summary Suit no. 1019 of
2017 is hereby rejected.
2. Costs in cause.
Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 15/02/2021 City Civil Court, Gr. MUMBAI
Dictated on : 15.02.2021
Transcribed on : 16.02.2021
Checked on : 16.02.2021
Signed on : 16.02.2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.02.21 at 11.15 a.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 15.02.2021
Judgment/order signed by P.O. on 16.02.2021
Judgment/order uploaded on 17.02.2021
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