Final Order 1

Order Details: Other
Pdf Text: MHCC010087942019 Presented on 23/08/2019
Registered on 23/08/2019
Decided on 09/10/2024
Duration 05Y: 01M: 17D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 224 OF 2019
IN
SUMMARY SUIT NO. 1300 of 2018
Bajranglal Eriwal HUF through its Karta ]
Bajranglal Eriwal, Age: 70 yrs. ]
Having address at Dharnidhar Vastu Vaibhav,]
10th Floor, 138, Senapati Bapat Marg, ]
Matunga (W), Mumbai-400 016. ]...Plaintiffs
VERSUS
Silver Arch Builders and Promoters ]
A partnership firm duly registered under the]
partnership Act, having it’s office address ]
at Gordhan Building No.II, 2nd Floor, ]
Prathana Samaj, 12/14, Dr. Parekh Street, ]
Mumbai-400 004. ]...Defendants
Appearance:-
Ld. advocate O. P. Soni for the plaintiffs.
Ld. advocate Rashmi D. More i/b. Adv. Arun Panikar for defendants.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 09/10/2024.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 20/08/2019. Defendant has filed his reply to the
summons for judgment and resisted it and prayed for unconditional
leave to defend the suit. Plaintiff filed rejoinder to reply filed by
defendant.
02] As per the plaintiff, he is karta of Bajarangal Eriwal HUF.
Defendant is a Builder and Developer and it is a Partnership Firm
registered under the Partnership Act. Defendant approached to plaintiff
for friendly loan of Rs. 7,50,000/- and plaintiff has advanced the same
by cheque bearing No.000011, dated 11/10/2010 drawn on Bank of
India, Mahim Branch, Mumbai to defendant. Further, defendant has
issued receipt No. 557, dated 11/10/2020 against it. Defendant agreed
to pay quarterly interest at the rate of 12% p.a. to plaintiff and
accordingly paid interest upto 31/03/2013. Defendant has failed to pay
interest from April 2013 to March 2016, amounting to Rs. 3,05,125/-.
Defendant has given confirmation of account in respect of due and
payable amount in favour of plaintiff on 01/04/2014, 01/04/2015 and
01/04/2016. Defendant has sent letter dated 31/03/2017 to plaintiff
proposing not to charge interest for the financial year 2016-2017 which
plaintiff has not accepted vide letter dated 25/10/2017. Therefore,
defendant was liable to pay interest of Rs. 3,87,591/- as on March 2017
to 30/09/2018. Further, defendant sent confirmation report dated
01/04/2017 duly acknowledging claim of plaintiff. As defendant failed
to repay loan amount plaintiff issued legal notice dated 02/06/2017 by
registered post to defendant and called upon to pay an amount of
Rs. 11,47,568/- alongwith interest. Defendant has neither replied to
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said notice nor repaid amount however gave confirmation report on
01/04/2018 and acknowledged claim of plaintiff. Thus, plaintiff is
entitled for an amount of Rs. 14,42,716/-. It is further submitted that as
defendant has admitted the liability therefore, there is no substantial
defence raised by the defendant nor there is any triable issue. As
present suit is based on admitted liability it is maintainable. Further, as
defendant has given confirmation from time to time therefore, suit is
within limitation. It is contention of defendant that plaintiff is money
lender and therefore, suit is not maintainable in view of provision of
Section 13(1) of Maharashtra Money Lending (Regulation) Act. The
amount advanced by plaintiff was friendly loan. Thus, suit is
maintainable and relied on ratio laid down in Ganga Taro Vazirani vs.
Deepak Raheja, 2021 (3) ABR 274. Therefore, defendant is not entitled
for leave to defend the suit. Hence, summons for judgment may be
allowed.
03] On the other hand, it is submitted by defendant that
plaintiff is engaged in money lending business and he has filed suit for
recovery of loan therefore, it is barred by Section 13(1) of Maharashtra
Money Lending (Regulation) Act. It is further submitted that plaintiff
has no money lending license. He relied on ratio laid down in Budhu
Sao & Ors. vs. Baleswar Prosad Sao & Anr., (1985) 1 SCC 565. It is
further submitted that suit is not based on written contract therefore, it
is not maintainable under Order 37, Rule 2 of C.P.C. It is further
submitted that he has never admitted liability of the outstanding
amount of Rs.8,55,319/-. Further, suit is barred by limitation. Even,
suit is not valued properly and it is undervalued therefore, it requires to
be rejected. The plaintiff has suppressed material facts form Court and
not produced material documents. Thus, defendant has raised
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substantial defence and also triable issues. Hence, defendant is entitled
for unconditional leave to defend the suit as it requires evidence to
prove said issues. He relied on ratio laid down in Ramprasad Bhagirath
Agrawal vs. Uttamchand Danmal Pande, (2009) 1 AIR Bom. R. 31 and
B. L. Kashyap And Sons Ltd. vs. JMS Steels And Power Corporation And
Anr., (2022) 3 SCC 294. Therefore, he 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
documents on record. Heard both the parties. On perusing contentions
of both the parties, it appears that plaintiff has contended that he had
advanced an amount of Rs.7,50,000/- to defendant by cheque as
friendly loan and defendant had agreed to repay the same with interest
at the rate of 12% p.a. It is pertinent to note that defendant has in
general denied contention of plaintiff however, he has not specifically
denied that he has not borrowed loan form plaintiff. On perusing
document filed by plaintiff vide list Exh. 6/1, it appears that defendant
has executed receipt on 11/10/2010 in favour of plaintiff that he has
received friendly loan of Rs. 7,50,000/- as short term with 12% p.a.
Defendant has not denied issuance of said receipt.
05] The defendant has raised issue of limitation that suit is
barred by limitation. Admittedly, it appears that transaction is of 2010
and suit is filed on 23/10/2018. However, plaintiff has filed
confirmation of accounts given by defendant dated 01/04/2014,
01/04/2015, 01/04/2016 vide list Exh. 6/2. Further, plaintiff has also
filed letter issued by defendant dated 31/03/2017 vide list Exh. 6/3
which shows that defendant had requested plaintiff to waive interest for
the period 01/04/2016 to 31/03/2017. Even, defendant has
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acknowledged and admitted liability vide confirmation dated
15/01/2017 at Exh. 6/4. Thus, these documents shows that there was
loan transaction between plaintiff and defendant. As defendant has
given confirmation from time to time till 2017 therefore, prima facie it
can be said that suit filed in the year 2018 is not time barred.
Admittedly, it is a mixed question of law and fact and it requires
adjudication. Further, though there is no written contract between
plaintiff and defendant summary suit can lie on the basis of
confirmation of account under Order 37, Rule 2 of C.P.C. Therefore,
there is no substance in the contention of defendant that suit is not
maintainable as there is no written contract.
06] It is the defence of defendant that plaintiff is doing
business of money lending however, he does not have Money Lending
License. It is settled law that defendant has to prove said fact by
adducing evidence. Therefore, this aspect cannot be considered at this
stage. Hence, ratio laid down in Ganga Taro Vazirani vs. Deepak
Raheja's case cited supra by plaintiff and ratio laid down in Budhu Sao
& Ors. vs. Baleswar Prosad Sao & Anr and Ramprasad Bhagirath
Agrawal vs. Uttamchand Danmal Pande's, cases cited supra by
defendant cannot be considered at this stage. It will consider after
adducing evidence on merit. Further, it is also defence of defendant
that plaintiff has suppressed material facts and not produced all
documents. It is pertinent to note that defendant has not specifically
contended that which material facts plaintiff has suppressed and which
documents are not produced by plaintiff. It is also contentions of
defendant that suit is not properly valued and it is under valued.
However, it is not contended or submitted how it is under valued.
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07] Thus, though defendant has not raised substantial defence.
However, as discussed above as defendant has raised triable issue with
respect to limitation, plaintiff is money lender, suit is under valued and
not produced material documents. Admittedly, these issues requires
adjudication. Therefore, I am of the view that defendant is entitled for
leave to defend the suit in view of ratio laid down in B. L. Kashyap &
Sons Ltd. Vs. M/s. JMS Steels & Power Corporation & Anr.'s case law
cited supra by defendant. However, defendant is not entitled for
unconditional leave to defend the suit. Admittedly, he is entitled for
leave to defend the suit but subject to condition to deposit some amount
towards the outstanding amount. Hence, I proceed to pass following
order.
ORDER
1) Summons for judgment No.224/2019 in Summary Suit No.
1300/2018 is disposed off as follows:
(a) Leave to defend the suit is granted to defendant subject to
condition that he shall deposit principal amount within 60 days
from the date of this order.
(b) Defendant will be at liberty to file its written statement on
record within 30 days after depositing amount.
2) After depositing amount by defendant, it be deposited in
fixed deposits in any Nationalized bank as per law.
3) No order to costs.
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4) Summons for judgment No.224/2019 is disposed off accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 09/10/2024 Court Room No.81
Dictated on : 09/10/2024
Corrected & signed on : 10/10/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
11/10/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 09/10/2024
JUDGMENT/ORDER signed by P. O. on 10/10/2024
JUDGMENT/ORDER uploaded on 11/10/2024
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