Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 858/21 in Comm. Suit No. 9/2020. 1 Order.
MHCC010027572021
Presented on : 19-03-2021
Registered on : 19-03-2021
Decided on : 20-04-2022
Duration : 1 years, 1 months, 1 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 858 OF 2021
IN
COMMERCIAL SUIT NO. 9 OF 2020
Shailesh Bhoomrmal Sanghvi ...Plaintiff
Versus
Mr. Haresh Sankalchand Hirani ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 20th APRIL, 2022.
Smt. Archana More, Advocate for the defendant.
Shri Ramesh Jain, Advocate for the plaintiff.
ORDER
1. The defendant has taken out this notice of motion for
rejection of the plaint under Order VII Rule 11(d) of the CPC. Perused
notice of motion and affidavit in reply. I have gone through the suit
proceeding. Heard learned counsel Smt. Archana More for the
defendant and learned counsel Shri Ramesh Jain for the plaintiff.
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N/m No. 858/21 in Comm. Suit No. 9/2020. 2 Order.
2. Learned counsel Smt. Archana More for the defendant
adopted contents in notice of motion as her arguments. Affidavit in
support of notice of motion reveals that the plaintiff had advanced
friendly loan of Rs.10,00,000/ to the defendant by Cheque No. 000113
drawn on Bank of India, M.G.Market Branch, Mumbai on 14/10/2011.
It is stated in the plaint that the defendant agreed to pay interest at the
rate of 1% per month and accordingly, interest is paid upto 31/03/2015
to the plaintiff by cheques. By relying upon these pleadings in the
plaint, the defendant has raised objection to maintainability of the suit
by stating that the plaintiff is the money lender without license and the
suit cannot be filed as per Section 10 of the Maharashtra Money
Lending (Regulation) Act, 2014 (for short, “the Act”). As the suit is
barred by law, the defendant prayed for rejection of the plaint.
3. On the contrary, learned counsel Shri Ramesh Jain for the
plaintiff pointed out contents in affidavit in reply and the plaint.
According to him, the plaintiff is doing business of textile as a sole
proprietor in the name and style of “Gaurav Fabrics”. The defendant is
very well aware about the same. The plaintiff is not doing money
lending business. He advanced friendly loan to the defendant on his
request by way of a cheque. He also relied upon observations of
Hon'ble Bombay High Court in para 14 and 21 in the case of Tradelink
Exim (India) Pvt. Ltd. Vs. Tulip Land and Developers Pvt. Ltd.
2018(3) ALL MR 525 to state that a loan means an advance at interest
whether of money or in kind but inter alia does not include an advance
in the sum exceeding Rs.3,000/ made on the basis of a negotiable
instrument as defined in the Negotiable Instruments Act, 1881. Amount
advanced on the basis of negotiable instrument does not make the
plaintiff a money lender. He also relied upon para 10 and 14 in the
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N/m No. 858/21 in Comm. Suit No. 9/2020. 3 Order.
case of Mour Marbles Industries Pvt. Ltd. V/s. Motilal Laxmichand
Salecha and Others (Commercial Appeal (Lodg) No. 248/2018 in
Summons for Judgment No. 64/2016 in Commercial Summary Suit
No. 404/2016 decided on 11/06/2018) in which aim and object of
introducing the MML Act is discussed and it is observed that a cheque of
a larger amount is a negotiable instrument which clearly falls within the
provisions of Clause (j) of Section 2(13) of the MML Act, so as to dis
include such advance from being labelled as a loan under the Act. He
prayed for dismissal of notice of motion.
4. Considering rival submissions and material on record, it
appears that the plaintiff advanced friendly loan to the defendant. The
defendant had continued to pay interest to the plaintiff till March 2015.
The transaction is through the cheque. The pleadings in the plaint do
not show that the plaintiff is carrying on the business of money lending
and he advanced money to several persons. With this regard,
observations in the cases of Tradelink and Mour Marbles (cited supra)
are applicable to the case in hand. The defendant may bring on record
evidence to show that the plaintiff is a money lender within the
meaning of definition in the Act in the course of trial, but contents in
the plaint are not sufficient to reject the plaint by applying the bar
under Section 10 of the Act. For this reason, notice of motion is liable
to be dismissed. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 858/2021 is dismissed.
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N/m No. 858/21 in Comm. Suit No. 9/2020. 4 Order.
2. The proceeding of N/m No. 858/2021 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 20/04/2022. Mumbai.
1. Dictated online on : 20/04/2022.
2. Signed on : 20/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/04/2022. 3.55 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 20/04/2022.
Judgment/Order signed by P.O. on 20/04/2022.
Judgment/Order uploaded on 20/04/2022.
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