Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 26-08-2019
Registered on : 26-08-2019
Decided on : 05-10-2021
Duration : 02 years, 01 months, 09 days
EXHIBIT2
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.227 OF 2019
IN
SUMMARY SUIT NO. 828 OF 2018
P. ARAVINDAN ]
Age 66 years of Mumbai, ]
An adult Indian Inhabitant having ]
Address at D905, Pearl Drop, ]
Great Eastern Gardens, Kanjurmarg, ]
Mumbai – 400 078. ].. Plaintiff.
V/s.
1. REGAL SHIPPING & MARINE ]
SERVICES PRIVATE LIMITED ]
A Company Registered under the ]
Companies Act 1956, having its ]
address at 711, Vindya Commercial ]
Premises, Sector No.11, Plot No.1, ]
CBD Belapur, Navi Mumbai400614. ]
2. VIVEK KUMAR BHAGAT ]
Age not known an adult Indian ]
Inhabitant Having his address at ]
REGAL SHIPPING & MARINE ]
SERVICES PRIVATE LIMITED at ]
and from 711, Vindya Commercial ]
Premises, Sector No.11, Plot No.1, ]
CBD Belapur, Navi Mumbai400614. ]
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3. VARGHESE ANTHONY ]
Age not known an adult Indian ]
Inhabitant Having his address at ]
Varghese Anthony and Associates, ]
D46162, Green Field Rocks Ends ]
CHS Ltd, J.V. Link Road, ]
Andheri (East), Mumbai400 093. ]..Defendants.
Advocate Mr. Ramesh Jain for the plaintiff.
Advocate Mr. Vijay Yadav for defendant Nos.1 and 2.
Advocate Mr. Prakash Chaudhary for defendant No.3.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 5th OCTOBER, 2021
JUDGMENT
The Summons for Judgment is taken out by plaintiff in
Summary Suit No. 828 of 2018, which is instituted for the recovery of
amount of Rs. 5,31,517.80 along with interest on the amount of Rs. 4
Lack at the rate of 11% per annum from the institution of the suit till
realisation of the total decreetal amount.
2. The writ of summons was served upon the defendants and
they appeared before the court through their advocate. Hence plaintiff
took out summons for judgment. All three defendants have filed reply
and leave to defend on record.
3. It is the case of plaintiff that defendant No. 1 is a registered
company and on 15/11/2013, the defendants approached to plaintiff
for extending financial assistance by way of business loan. The
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defendants were well known to the plaintiff. Therefore, plaintiff
accepted the request and extended business loan on 14/11/2013 by a
cheque drawn at Canara Bank for the amount of Rs.4,00,000/. The
defendants encashed the said cheque and received the amount. On the
same day defendant No. 1 drew a bill of exchange directing thereby,
defendant No.2 to pay the plaintiff or order the amount of
Rs.4,00,000/. The amount was payable after 360 days at Mumbai.
Defendant also agreed to pay interest at the rate of 11% per annum.
The loan was borrowed by defendant Nos. 1 and 2 whereas defendant
No. 3 was guarantor for the said loan.
4. Plaintiff states that on 15/11/2014, he presented the said
bill of exchange to defendant No. 2 and demanded the amount.
Defendant No. 2 dishonoured the same. Plaintiff communicated the
demand to defendant No. 1 immediately. The defendant No. 1 refused
the demand. Plaintiff immediately informed defendant No. 3 about the
dishonour of Bill of exchange and informed defendant No. 3 that the
plaintiff was going to deposit the cheque issued by the defendant along
with his guarantee letter.
5. It is the case of plaintiff that defendant No. 3 requested him
for extension of time and returning the original bill of exchange and
cheque dated 15/11/2014 and issued another cheque of Rs.4,00,000/
bearing No. 023929 dated 05/02/2015. Plaintiff, at the request of
defendants, handed over the original bill of exchange and cheque dated
15/11/2014 to defendants by taking Xerox copies of the same.
Thereafter, defendants again requested plaintiff to extend the date from
05/02/2015 to 07/07/2015. Again on 07/07/2015, defendants
informed plaintiff not to deposit the cheque on the ground that they
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were going to close the account and they will open a new account and
issue a fresh cheque.
6. Plaintiff has further stated that he demanded the amount of
Rs. 4 lakh to defendants from time to time along with accrued interest.
However, the defendants failed to pay the same. They extended the
time for payment again and again. Plaintiff issued a legal notice to
defendants on 02/07/2018 and demanded the amount with interest.
Defendants received the letter. They did not pay the amount and even
did not reply the letter. Hence, plaintiff was constrained to institute the
present suit.
7. Defendant Nos. 1 and 2 contested the summons for
judgment and filed leave to defend. They have denied all the
contentions in the plaint. They have stated that summary suit is not
maintainable in the present form. They have stated that the claim of
plaintiff is time barred. It is to be recovered from defendant No. 3. For
all these reasons defendant Nos. 1 and 2 have prayed for dismissal of
the summons to judgment taken out by plaintiff and for leave to defend.
8. Defendant No. 3 has contested the suit and has stated that
this Court has no territorial jurisdiction to try and decide the suit. The
claim of plaintiff is time barred. The amount was to be repaid by
defendant Nos. 1 and 2 on or before 15/11/2014 and the present suit is
instituted in the month of July 2018. Hence, it is out of limitation. He
has stated that he is not liable to pay any amount to plaintiff. He has
stated that he acted as mediator between plaintiff and defendant Nos. 1
and 2. They had requested for a business loan from plaintiff. The
amount was deposited in the account of defendant Nos. 1 and 2. On the
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same day defendant No. 1 issued a cheque in favour of plaintiff for
return of the said amount. Plaintiff failed to deposit the said cheque for
payment. Defendant No. 3 has denied that he issued any cheque in
favour of plaintiff for payment. The cheque dated 05/02/2015 is issued
by the partnership firm V K Credit and Investment. It was issued in
response to the request of plaintiff of financial assistance to defendant
No. 3 and this cheque is not connected with the disputed bill of
exchange at all. Defendant No. 3 paid the amount of Rs. 33,000/– to
plaintiff towards the interest upon the assurance of reimbursement by
defendants No. 1 and 2. This payment is concealed by plaintiff from the
Court.
9. Defendant No. 1 has further stated that plaintiff has
concealed from the court that he and his family members extended total
amount of Rs. 23,00,000/ to defendant No. 1. On the assurances of
reimbursement by the defendant Nos. 1 and 2, defendant No. 3 paid
Rs.15,00,000/ to plaintiff. The cheques issued by defendant Nos. 1
and 2 to defendant No. 3 towards the reimbursement were
dishonoured. Defendant No. 3 has filed criminal complaints against the
defendants No. 1 and 2 in that regard.
10. Defendant No.3 has further stated that plaintiff
communicated defendants No. 1 and 2 as per his letter dated
14/05/2017 that all the amounts in regard to this loan transaction shall
be paid directly to the plaintiff and not to the defendant No. 3.
Defendant No. 3 has further stated that he has raised triable issues in
the matter. Therefore, he is entitled to the live to defence
unconditionally.
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11. Considering the pleadings of the parties, documents on
record and submissions of learned advocates, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
Summons for Judgment as prayed for?
In the
Negative
2 Whether the defendant Nos.1 and 2 are
entitled to the leave to defend the suit?
Partly In the
Affirmative
3 Whether defendant No. 3 is entitled to leave
to defend?
Partly In the
Affirmative
4 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
12. As all the points are related to each other, they are
discussed at once to avoid the repetition.
13. Plaintiff has produced on record a copy of bill of exchange
dated 15/11/2013. It appears that all 3 signatures on the said bill of
exchange are of one and the same person and that is defendant No. 2.
The signature of defendant No. 3 is not appearing on the said bill of
exchange. Plaintiff has produced on record a letter issued by defendant
No. 3 to plaintiff on 15/11/2013 towards the guarantee for business
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loan. It states that, the defendant No. 3 introduced defendant No. 1
and 2 to plaintiff for the purpose of business loan of Rs.4,00,000/. That
will be refunded on 15/11/2014. In the event of borrower not in a
position to refund the loan, on due date Defendant no. 3 hereby
undertakes to refund the loan along with any unpaid interest, if any
within 30 to 60 days from the due date of the loan on 15/11/2014. The
letter was accompanied by refund cheque issued by defendant No. 3. A
copy of cheque is produced at exhibit C.
14. These 3 documents prima facie show that defendant No. 1
and 2 obtained amount of Rs.4,00,000/ from plaintiff and defendant
No. 3 guaranteed plaintiff about the refund of the said amount. As per
the case of plaintiff the legal notice issued has gone unchallenged.
15. In order to get leave to defend, defendants have to show
that they have triable issues which need to be decided on merits.
Defendant Nos. 1 and 2 have in the reply stated that it was the
defendant No. 3 who ia liable to pay the amount to plaintiff. They have
come with the case that the suit is time barred. It is further stated that
there is no admitted debt of liquidated sum of money and therefore, the
suit is not maintainable in the present form. They have further stated
that defendant No. 3 is liable to pay the amount of plaintiff. It is
important to note that the suit was instituted on 05/07/2018. The bill
of exchange on which plaintiff is relying was executed on 15/11/2013.
The demand notice was issued by plaintiff on 02/07/2018.. The cheque
is appearing to be issued by defendant No. 3 on 07/07/2015. The
defence of limitation is also taken by defendant No. 3 in his application
for leave to defend.
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16. It is pertinent to note that the issue regarding limitation is a
mixed question of law and facts. Plaintiff has to institute a suit within 3
years from the date on which defendants refused to pay the amount.
Therefore, it is necessary to give an opportunity to both the parties to
lead evidence in this regard. Issue of limitation is going to the root of
this matter and therefore, it is certainly a triable issue.
17. Defendant No. 3 has raised a point that this transaction is a
part of bigger transaction involving the amount of Rs.23,00,000/. He
has stated that he paid amount of Rs. 15,00,000/ to plaintiff out of the
Rs.23,00,000/ advanced by plaintiff to defendant Nos. 1 and 2.
However, defendant No. 3 has not explained how he was liable to pay
that much amount to plaintiff. This issue is also a triable issue and
needs evidence of the parties.
18. In the circumstances, a conditional leave can be granted to
the defendants to defendants the suit. Therefore, I feel it appropriate to
direct the defendants to deposit the amount of Rs.4,00,000/ in the
Court.
19. As I have earlier discussed the point of limitation is vital in
the matter. Unless the plaintiff proves that the suit is within limitation,
he is not entitled to the decree for recovery of amount. The point of
limitation is a triable issue. Therefore, plaintiff is not entitled to the
relief of recovery of amount at this stage. In view of the above, I answer
point No. 1 in the negative and point Nos. 2 and 3 partly in the
affirmative and in answer to point No. 4, I proceed to pass following
order.
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O R D E R
1. Summons for Judgment is dismissed.
2. Leave to defend is granted to defendants subject
to depositing the amount of R.4,00,000/ in the
Court within the period of 60 days from the date of
this order.
3. If the amount is deposited by the defendants, the
Registrar is directed to invest the same in fixed
deposit in any nationalized bank for the initial
period of one year and thereafter the said period
may be extended by one year every time till the
order of this Court.
4. Cost will following main cause.
5. The Summons for Judgment No.227 of 2019 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 05.10.2021 Gr.Mumbai.
Dictated on: 05.10.2021
Typed on : 05.10.2021
Signed on : 05.10.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20.10.2021 AT 10.30 A.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
05/10/2021
Judgment/Order signed by P.O. on 05/10/2021
Judgment/Order uploaded on 20/10/2021
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