Order 4

Order Details: Order below exhibit
Pdf Text: Comm.Suit No. 134/19. 1 Order below Exh.3.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 3
(APPLICATION FOR SUMMARY JUDGMENT NO. 2 OF 2019)
IN
COMMERCIAL SUIT NO. 134 OF 2019
M/s. Ashok Commercial Enterprises and another )...Plaintiffs
Versus
Rajesh Jugraj Madhani )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 11th AUGUST, 2021.
Ms. Yasmin Tavaria, Advocate for the plaintiff.
None for the defendant.
ORDER
1. This is an application for summary judgment filed by the
plaintiff. Perused application, suit proceeding and citation filed by the
plaintiff. Heard learned counsel Yasmin Tavaria for the plaintiff.
2. Learned counsel Yasmin Tavaria submitted that the
property of the defendant was kept for auction by Hon'ble High Court.
The suit was filed as a summary suit and it came to be registered as a
commercial suit. She further submitted that the defendant filed Notice
of Motion No. 840/2020 for dismissal of the suit for noncompliance of
preinstitution mediation and it was dismissed as per order dated
10/03/2021. The defendant had also filed Notice of Motion No.
841/2020 for condonation of delay caused to file written statement and
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Comm.Suit No. 134/19. 2 Order below Exh.3.
it was allowed as per order dated 10/03/2021. Then, written statement
is marked as Exh.2. According to her, she had filed present application
for summary judgment at earlier point of time in November, 2019. By
pointing out these developments in the matter, she submitted that
application for summary judgment is maintainable. According to her,
the defendant has admitted liability in reply notice dated 09/08/2019
in para 18. He had also issued cheques for discharging the liability and
those cheques were dishonoured. There is adequate admission given by
the defendant in reply notice dated 09/08/2019. She has relied upon
observations of Hon'ble Delhi High Court in para 28 onwards in the case
of SuKam Power Systems Ltd. V/s. Kunwer Sachdev and Another
(2019 SCC OnLine Del 10764). She prayed to allow the application.
3. On perusal of contents in the plaint, it appears that the
plaintiff had advanced amount of Rs.50,00,000/ to the defendant by
RTGS on 27/05/2015. Accordingly, Bill of Exchange (Exh.A) is
executed by the defendant. The plaintiff has further pleaded about
issuance of two cheques of Rs.50,00,000/ and Rs.2,33,333/ towards
payment of the principal amount and interest respectively by the
defendant in para 6 of the plaint. The plaintiff proceeded to plead
about interest of Rs.40,24,460/ to be recovered from the defendant.
Contents in written statement reveals that the defendant has not
expressly denied the aspect of receipt of Rs.50,00,000/. The defendant
has raised the contention that the plaintiff had assured to show money
lending license to the defendant. As the plaintiff failed to comply the
stipulation, the amount is written off.
4. After considering rival pleadings, the plaintiff has
introduced the aspect of interest to be recovered on sum of
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Comm.Suit No. 134/19. 3 Order below Exh.3.
Rs.50,00,000/ advanced to the defendant without any support of the
documents. Similarly, the entire defence of the defendant is based
upon alleged verbal promise given by the plaintiff to him. It is pertinent
to note that interest shown in the plaint to be recovered from the
defendant is near to the principal amount. In addition to it, the
defendant has almost denied all major aspects in the pleading of the
plaintiff. Silence of the defendant with regard to borrowed amount of
Rs.50,00,000/ is not sufficient to decide all aspects involved in the
matter without extending the parties an opportunity of leading
evidence. Considering the fact that there is triable issue of fact, it is
difficult to pass summary judgment.
5. In addition to it, the defendant has relied upon Section
13(1) of the Maharashtra MoneyLending (Regulation) Act, 2014 for
questioning the maintainability of the suit. So there is also legal issue
to be dealt with by the Court. Considering nature of rival pleadings, it
is not possible to dispose off the suit by way of a summary judgment. I
have carefully gone through the observations of Hon'ble Delhi High
Court in above referred citation. In this citation, admissions given by
the defendant in the documents as well as pleadings were taken into
account by Hon'ble Delhi High Court. In the case in hand, the
defendant has not admitted the aspect of documents executed by him.
He has specifically denied execution of Bill of Exchange on 27/05/2015
and fresh Bill of Exchange on 30/10/2015 in para 24 and 27 of the
written statement respectively. He has also disputed the aspect of
disputed cheques in para 25 of the written statement. In short, there
are no admissions on the part of the defendant regarding material
aspects of the matter. Therefore, there is difference between factual
aspects of the present case and those mentioned in the citation. For this
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Comm.Suit No. 134/19. 4 Order below Exh.3.
reason, there is no scope to apply the ratio in the case of Sukam Power
Systems as referred above to the case in hand. Hence, I pass the
following order :
ORDER
Application for Summary Judgment No. 2/2019 (Exh.3) is
dismissed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 11/08/2021. Mumbai.
1. Dictated on : 09/08/2021.
2. Transcribed on : 09/08/2021.
3. Signed on : 11/08/2021.
4. 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
11/08/2021. 3.44 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 11/08/2021.
Judgment/Order signed by P.O. on 11/08/2021.
Judgment/Order uploaded on 11/08/2021.
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