Final Order 1

Order Details: Other
Pdf Text: MHCC010079942019 Presented on 02/08/2019
Registered on 02/08/2019
Decided on 14/01/2026
Duration 06Y: 05M: 12D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 212 OF 2019
IN
SUMMARY SUIT NO. 514 OF 2018
Baban Devaji Jankar ]
Age 55 yrs., of Mumbai an adult ]
Indian Inhabitant carrying business ]
of money lending at and from ]
Vijay Niwas, Jivdaya Lane, LBS Marg, ]
Ghatkopar (West), Mumbai - 400086. ]...Plaintiff
VERSUS ]
Panidevi Madanlal Bafna @Jain ]
Age not known of Mumbai an adult ]
Indian Inhabitant having address at ]
M. S. Jewellers, Shop No. 14, Giri ]
Vihar, Jivdaya Lane, Ghatkopar West ]
And residing at 19-2A Girivihar Bldg.,]
Jivdaya Lane, Ghatkopar, ]
Mumbai - 400086. ]...Defendant
Appearance :-
Ld. Adv. Madhuri Shirke h/f. Adv. Ramesh Jain for plaintiff.
Ld. Adv. Shamika D. Pawar i/b. Adv. Robin Thomas for defendant.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO.: 81
DATE : 14/01/2025
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 25/07/2019. Defendant filed reply to the summons for
judgment and resisted it and prayed for unconditional leave to defend
the suit.
02] As per the plaintiff, he is engaged in the business of
money lending. The defendant is mother and legal heir and legal
representative of the person reported to be in charge and control of the
estate of late Mukesh Madanlal Bafna (in short deceased). Plaintiff had
advanced an amount of Rs. 4,00,000/- to deceased Mukesh Madanlal
Bafna on 20/05/2017. Defendant and deceased executed demand
promissory note in favour of plaintiff on 20/05/2017 and agreed to
repay the same at the rate of 18% p.a. Deceased and defendant failed
to repay said amount with interest however, after repeated demand to
discharge their liability deceased issued post dated cheque bearing
743309, dated 18/12/2017 in favour of plaintiff for sum of
Rs. 4,00,000/-. The said cheque when presented was dishnoured on
05/02/2018 with remark, “REKYC A WAIT PRESENT AGAIN”. The
plaintiff came to know expiry of Mukesh Madanlal Bafna. The plaintiff
issued notice dated 15/02/2018 and called upon defendant to make
the payment of said cheque as she is only legal heir of deceased. It is
the contention of the plaintiff that he is entitled for an amount of
Rs. 4,58,191.78ps. along with interest. It is further submitted that
defendant has no defence and not raised any substantial defence or
any triable issue. Therefore, defendant is not entitled for leave to
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defend the suit. Hence, summons for judgment may be allowed.
03] On the other hand, it is argued on behalf of the defendant
that Summary suit and summons for judgment filed by the plaintiff is
without any cause of action and not maintainable and liable to be
dismissed. The defendant contended that the husband of the defendant
expired on 1998 and she has one son and three daughters and all are
married. Further, the deceased first wife expired and thereafter he got
remarried to Anuradha. The defendant is the mother of deceased
Madanlal Bafna who expired on 14/12/2017. Further, deceased was
alcoholic and was not residing with defendant. Defendant is not
concerned with suit transaction and the promissory note does not bear
her signature or thumb impression of defendant. The said promissory
note is fabricated and false. The deceased had borrowed alleged loan.
Further, defendant is neither legal heir or legal representative of
deceased nor received any estate from defendant. The alleged cheque
was given as security by the deceased and it is also doubtful as cheque
is dated after the demise of deceased. Plaintiff had not intimated
before depositing the said cheque. It is further submitted that she has
not received any demand notice from the plaintiff. Further, she is not
liable to pay any amount to the plaintiff. The plaintiff has contended
that he is money lender however, he has not complied with the
provisions of Maharashtra Money Lending (Regulations) Act. It is
submitted that she has raised substantial defence that she has not
borrowed alleged loan from the plaintiff. Defendant relied on ratio laid
down in M/s. Mechalec Engineers and Manufactures vs. M/s. Basis
Equipments Corporation, AIR 1977 Supreme 577, wherein, Hon’ble
Apex Court has laid down guidelines in para 8 to grant leave to defend
the suit. Further, defendant relied on ratio laid down in Sha Damji
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Deraj vs. Megraj Bhikumchand & Co., 1958, the Bombay Law Reporter
(Vol.LX) 1366, wherein it is observed that, “ in a suit filed under order
37 of Civil Procedure Code, 1908 to which the Bombay Money Lenders
Act, 1946, applies, the court must give unconditional leave to the
defendant to defend the suit”. Therefore, she is entitled for
unconditional leave to defend the suit. Hence, summons for judgment
may be dismissed with costs.
04] Perused summons for judgment, reply of the defendant
and record. Heard both parties. As per plaintiff, he has advanced an
amount of Rs.4,00,000/- on 20/05/2017 to the defendant and
deceased Mukesh Madanlal Bafna. Further, they executed promissory
note on 20/05/2017. The plaintiff has filed original promissory note
vide List Exh. 8/1. On perusing said promissory note, it appears it
bears signature of deceased Mukesh Madanlal Bafna. Further, it also
bears name of defendant however, it is the contention of the plaintiff
that it is signature of defendant. However, the defendant has
specifically contended that she has never signed on said promissory
note. Further, it is the contention of the defendant that she was not
residing with deceased and not aware about transaction. It is pertinent
to note that it also bears thumb impression however, plaintiff has not
pleaded whose thumb impression it is.
05] It is the contention of the plaintiff that Mukesh Madanlal
Bafna is expired. However, plaintiff has not pleaded as to when said
Mukesh M. Bafna is expired. It is not disputed that defendant is mother
of Mukesh Bafna. As per defendant deceased expired on 14/12/2017.
It is the contention of the plaintiff that deceased had given post dated
cheque bearing 743309, dated 18/12/2017 in favour of plaintiff for
sum of Rs.4,00,000/-. Further, said cheque was dishonored. The
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plaintiff has filed said original cheque alongwith cheque return memo
on record vide list Exh. 8/2. However, it is not pleaded as to when said
cheque was issued by the deceased.
06] It is the contention of the plaintiff, he is money lender and
having valid Money Lending License. Plaintiff has filed photocopy of
Money Lending License vide List Exh. 8/4. It is not original money
Lending License and therefore, it cannot be considered at this stage. It
is settled law that original documents are required to be filed at the
time of hearing on summons for judgment as laid down in Neebha
Kapoor Vs. Jayantilal Khandwala and others, AIR 2008 SC 1117
wherein, Hon'ble Apex Court has observed that, '
at the time of hearing
summons for judgment, plaintiff has to file original documents.'
Further, unless plaintiff shows that he has valid money lending license
suit for recovery is not maintainable. Further, plaintiff also filed
photocopies of Form No.10 and extract of ledger account vide List
Exh.8/5 and 8/6. Further, it is the contention of the plaintiff that
defendant failed to repay the amount letter dated 15/02/2018 was
issued to the defendant by RPAD which is returned. The plaintiff has
filed office copy of said letter along with original postal receipt and
sealed envelope vide List Exh.8/3.
07] Further, though plaintiff has pleaded that defendant has
inherited property of the deceased however, plaintiff has not pleaded
details of deceased property. Thus, it appears that there are triable
issues i.e. whether plaintiff is having valid Money Lending License and
whether defendant is liable to pay amount as claimed by the plaintiff
along with interest. Further, the ratio laid down in case laws cited
supra on behalf of defendants are squarely applicable to the facts of
the present case. Therefore, I am of view that defendant is entitled for
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unconditional leave to defend the suit. Hence, I proceed to pass the
following order.
ORDER
1) Summons for judgment No.212/2019 in Summary Suit
No. 507/2018 is disposed off as follows:
(a) Defendant is granted unconditional Leave to defend
the suit and defendant is at liberty to file written
statement on or before next date.
2) Summons for judgment No.212/2019 is disposed of
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 14/01/2026
Dictated on : 14/01/2026
Corrected & signed on : 15/01/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
20/01/2026 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
14/01/2026
JUDGMENT/ORDER signed by P. O. on 15/01/2026
JUDGMENT/ORDER uploaded on 20/01/2026
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