Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 239618 in Suit No.130417
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2396 OF 2018
IN
SUMMARY SUIT NO. 1304 OF 2017
(CNR NO.MHCC010077252018)
Zaverchand Devji Dedhis ….Plaintiff
Versus
Paras V. Shah ... Defendant
Appearance:
Shri. Ritesh Solanki, Advocate for plaintiff.
Shri. Vijay Kurle, Advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 13/02/2019
ORAL ORDER
1) Notice of Motion is filed by the defendant to decide
maintainability of suit as preliminary issue and dismiss suit under
Order 7 Rule 11 r/w. Section 151 of Cr.P.C.
2) The Notice of Motion is supported by affidavit of
defendant. The defendant stated that he is proprietor of M/s. A.P.
Corporation doing business of hardware suppliers to Pharma
Industries. He has borrowed Rs.15 Lac from plaintiff for the
purpose of working capital in business. In year 2015 the business
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of defendant started facing financial crises. The defendant was
paying installments to the plaintiff till June 2017. He could not
continue to repay the loan in view of financial crises in the
business. The agents of the plaintiff started visiting office of
defendant. The plaintiff failed to consider adverse circumstances
of defendant. He was told that he will not be allowed to do the
business and therefore, the defendant want to repay the
outstanding amount of Rs.7,40,000/ immediately.
3) The defendant received the documents from the
advocate for plaintiff in the month of November 2017 of
Summary suit. He approached the plaintiff to resolve the dispute
of outstanding loan and sought time to make payment of the
borrowed amount. The plaintiff's agent again started aggressive
methods to recover the money. On 27/03/18 the plaintiff's agent
visited his office Room No.36, Commercial Chamber, Junction of
Yusuf Meharali Road and Mohammad Ali Road, Masjid Bunder,
Mumbai400 003 of defendant and demanded Rs.8 Lacs. On that
day itself defendant has paid Rs.8 Lac in cash and thereafter, he
has filed a complaint in Paydhoni police station. He was
hospitalized and later discharged but out of fear he made
payment of Rs. 5 Lac to the plaintiff as full and final payment
against the cheque issued by the plaintiff to the defendant. He
has paid Rs.20,60,000/ to the plaintiff. The plaintiff is money
lender and doing illegal and unlawful business without license of
Reserve Bank of India.
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4) The plaintiff has mentioned that he is Karta of Hindu
Undivided family but no resolution annexed to the plaint.
Therefore, plaint is not tenable and prayed to reject the Notice of
Motion under Order 7 Rule 11 of Code of Civil Procedure.
5) The plaintiff filed reply and denied the contents of
the allegations made in the Notice of Motion. The plaintiff
contended that in respect of service of summons he failed to
appear within 10 days as per Order 37 of Code of Civil
Procedure. Therefore, he has lost his opportunity to defend the
suit. The application is not maintainable. On the contrary,
defendant after the suit was filed himself tried to compromise the
suit and consent terms were ready for signature. But he failed to
file those consent terms in the court and filed this Notice of
Motion. Notice of Motion is not maintainable. Hence, prayed to
reject the Notice of Motion.
6) Heard advocate Shri. Ritesh Solanki for plaintiff and
Advocate Shri. Vijay Kurle for defendant. Perused the Notice of
Motion supported by affidavit and reply of plaintiff supported by
affidavit.
7) The defendant has filed this Notice of Motion under
Order 7 Rule 11 of Code of Civil Procedure stating that the plaint
is not maintainable. The plaintiff being Karta of Hindu Undivided
family has not filed any resolution. The plaintiff is money lender
and not having license. On this count also the suit is not
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maintainable.
8) On the other hand, the plaintiff's main defence in
Notice of Motion is that the defendant failed to appear within 10
days of service of writ of summons. Therefore, he has no
authority to file the Notice of Motion. The plaintiff is entitled for
decree under Order 37 of Code of Civil Procedure as the
defendant has failed to appear.
9) Advocate Shri. Solanki for plaintiff has relied on
authority reported in, (a) “Manu/MH/0580/1993, Nandram
Kaniram and Ors. Vs. N.B. Rahatekr, and (b) “Summons for
Judgment No.100 of 2004 in Summary Suit No.4082 of 2003,
Ramnik Pasu Gala Vs. M/s. Pate Corporation & Ors.” that,
“whether or not, an individual is carrying on
business of moneylending is essentially a question
of fact. The final Court of fact has recorded a
finding of fact in favour of the plaintiff. I see no
reason to interfere with the same in second appeal.
Here is a professional carrying on profession in a
city like Pune. He must have had savings from the
professional income. It would be natural for him to
invest the same in a manner by which he can
derive maximum return. If he has chosen to
advance his savings on interest to reputed and
known traders through a Hundi Dalal on few
occasions, it cannot be said that he was a
professional moneylender. I business always
imports a notion of system, repetition, and
continuity. These elements have been held to be
absent in the instant case and I see no perversity in
reaching that conclusion. Neither law, nor equity is
in favour of the – defendant who is trying to delay
and defeat the just claim and avoiding his solemn
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liability to honour his commitment. The last point
is also therefore without any substance.”
10) The defendant has raised the law point on the
ground that maintainability of the suit with the plaintiff is money
lender and doing business without license and plaintiff being
Karta has not filed any resolution. The plaintiff being Karta of the
family is not entitled to file any resolution to get the recovery of
debt from the debtors. Therefore, this objection of the defendant
is not tenable. The defendant has opportunity to defend his suit.
However, instead of filing the proper application by condoning
the delay caused to file the appearance and to contest the
litigation this Notice of Motion to delay the proceeding. Unless
the defendant seeks leave to defend by condoning the delay the
objection of the defendant is not tenable. Hence, pass following
order:
ORDER
Notice of Motion is rejected with cost of
Rs.5,000/ to be paid to the plaintiff.
(S.S. Nagur)
Date : 13/02/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 13/02/2019
Transcribed on : 01/03/2019
Signed on : 01/03/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
01.03.2019 & 1.54 p.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 13.02.2019
Order
Judgment/Order signed by the P.O. on : 01.03.2019
Judgment/Order uploaded on : 01.03.2019
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