Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.3457/2019 in Sum. Suit No.303/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3457 OF 2019
CNR NO.:MHCC010094372019
IN
SUMMARY SUIT NO. 303 OF 2017
Umesh Prakash Kela ]...Applicant/
Original defendant No.2
Versus
1. Naresh Gopaldas Valecha ]...Respondent/
Original plaintiff
2. Immense Packaging Pvt. Ltd. ]...Respondent/
Original defendant No.1
3. The Official Assignee
High Court at Bombay ]...Respondent
(Assignee of the Insolvent in INPT
No.20/16)
Appearances:
Advocate Mr. Kapadia for the plaintiff.
Advocate Mr. Bagwe for defendant No.2.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 20th JANUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by defendant No.2 to set aside
Order and judgment dated 03.10.2017 passed against him.
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2. Defendant No.2 has contended that he received letter from office
of the Official Assignee, High Court, Bombay informing that he has been
adjudicated as Insolvent by and Order dated 06.06.2019 passed by the
Hon'ble Insolvency Court, High Court at Bombay. In view of the said
Order, his all estate and effects are vested in the hands of the Official
Assignee, High Court, Bombay.
3. He has further stated that from the learned Official Assignee, he
came to know that plaintiff filed this Summary Suit bearing No.303 of
2017 against him and decree is passed against him.
4. He has stated that he was defendant No.2 in the said suit on the
basis of the Bill of Exchange dated 29.02.2012 signed by him on behalf
of said Company on or about 29.02.2012. He admits the Bill of
Exchange was signed by him but stated that it was signed pursuant to
the authority given by the existing Directors of the Company on or
around January, 2010.
5. Defendant No.2 has further stated that since July, 2016 he was
not dealing with the business of defendant No.1. He admitted that
previously he was Director of the Company, but resigned from the
Directorship from 18.09.2007. He has further stated that since many
years he is not dealing with the affairs of the said Company.
6. During the course of the business of said Company on or about
January, 2010 he was given some authority to deal with the financial
transactions of the Company by Resolution dated 15.01.2010. Vide said
Resolution, he was given authority to sign the documents and during
that time he signed the Bill of Exchange on behalf of the Company, but
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he was not the Director of the said Company on that date. He has
further stated that said Resolution gave him authority till the month of
July, 2016 and hence, after July, 2016 he was not concerned with the
affairs of the said Company and therefore, he is not liable for liability of
the said Company after July, 2016.
7. Defendant No.2 has further stated that he has not received Notice
dated 01.02.2017 issued by Advocate Mr. Kapadia. He has further
stated that he has no role in the affairs of the said Company on
01.02.2017, hence, acceptance of the said Notice addressed to him does
not arise. He has further stated that plaintiff filed the present suit on
04.02.2017 without verifying his role and involvement in the Company.
He has further stated that he is not liable for any liabilities of the
Company in respect of the said Bill of Exchange dated 29.08.2012.
8. He has further stated that cheque dated 07.11.2016 produced by
plaintiff in his evidence is signed by the existing Director and not by
him, which prove that after July, 2016 he was not liable for any
activities of the said Company.
9. He has further stated that he might have signed on Vakalatanama
given by the Company, defendant No.1. He has further stated that
however, the same is signed by him on the request of representatives of
defendant No.1 as the said suit pertains to the old transaction when he
was authorised by said Company. He has further stated that he was not
aware about the judgment and Order dated 3.10.2017 and prayed to
allow Notice of Motion.
10. Plaintiff has filed reply to this Notice of Motion and stated that
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since the defendant has been adjudicated insolvent, therefore, present
Notice of Motion is not maintainable and this Court is not having
jurisdiction to entertain the same.
11. Plaintiff has further stated that defendant No.1 has been also
wound up by the Hon'ble High Court of judicature at Bombay in
winding up proceedings and without joining the Official Liquidator as a
party to this Notice of Motion, this Notice of Motion is liable to be
dismissed.
12. Plaintiff has further stated that defendant is declared Insolvent
but he has failed and neglected to take prior permission from the
Hon'ble Insolvency Court for any reliefs he is seeking and therefore, this
Notice of Motion is not maintainable.
13. Plaintiff has further stated that the summons were served upon
both the defendants in the original Summary Suit and both defendants
filed the Vakalatanama of their Advocates and letter of intimation was
also sent to plaintiff's Advocate. Plaintiff has further stated that on
03.10.2017, Advocate Ms. Dubey also appeared for defendants in the
suit and the said fact is well known to the defendants.
14. Plaintiff has further stated that in the suit defendant No.1 is the
Drawer of the Bill of Exchange and it is made crystal clear in the para 3
of the Plaint, whose liability is primary, personal, jointly and severally.
Plaintiff has further contended that decree is passed against defendant
no.2 in his personal capacity.
15. Plaintiff has further stated that in the Insolvency Notice, the filing
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of present suit was also mentioned. But Insolvent neither took out the
Notice of Motion nor set aside the said Notice and the act of insolvency
was committed by him and hence, the Insolvency Petition was filed
bearing No.28 of 2018 and the present defendant is declared Insolvent
on 04.06.2019.
16. Plaintiff has further stated that during pendency of the said
Petition, defendant No.2 issued a cheque which was also dishonoured
and prayed for rejection of the Notice of Motion. Defendant has
admitted that he has signed on the Bill of Exchange produced in the
present Summary Suit. He contended that the Bill of Exchange was
signed by defendant No.2 as acceptor of the Bill of Exchange and
defendant No.1 was the drawer of Bill of Exchange.
17. It appears on the Bill of Exchange defendant No.2 has signed. It
appears that defendant No.2 has signed in his personal capacity. It
appears in the Bill of Exchange the drawer's signature it is clearly stated
that it is by Director for defendant No.1. But in the Bill of Exchange it is
nowhere mentioned that defendant No.2 has signed on behalf of
defendant No.1. Therefore, such contention of defendant No.2 that he
signed on behalf of defendant No.1 Company against the admitted
documents showing that he has signed in his personal capacity and not
on behalf of defendant No.1 Company cannot be accepted, hence stands
rejected.
18. As discussed above, the Bill of Exchange is signed by defendant
No.2 in his personal capacity as acceptor. Therefore, it is clear that it is
his personal liability. Therefore, when he resigned from defendant No.1
Company is not relevant at all.
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19. Defendant No.2 has stated that he might have signed on
Vakalatanama given by defendant No.1 Company. He further stated
that he signed it on the request of representative of defendant No.1 as
the suit pertains to old transaction. It shows that defendant No.2 signed
on Vakalatanama in the Summary Suit filed against the defendant. It
appears in the Suit on Exh. 2 i.e. Vakalatanama filed for defendant Nos.
1 and 2 and defendant No.2 has signed for defendant Nos. 1 and 2 in
two separate capacity one as Director of defendant No.1 and secondly
as only defendant No.2. It clearly shows that he was well aware of filing
of Summary Suit against defendant Nos.1 and 2. Therefore, the
contention of defendant Nos.1 and 2 that he was not aware of filing of
Summary Suit is not acceptable.
20. Defendant No.2 has admitted that he is adjudicated as Insolvent
by an Order dated 6th June, 2019 passed by the Hon'ble Insolvency
Court, High Court at Bombay. Plaintiff has contended that no
permission is taken by defendant to file this proceedings. Defendant
No.2 has failed to produce any documents showing that he has taken
prior permission to file this Notice of Motion nor contended that he has
taken prior permission of the Hon'ble Insolvency Court. Hence, on this
ground also this Notice of Motion fails.
21. As discussed above, it is clear that defendant No.2 filed
Vakalatanama in the present Summary Suit in both capacity as the
Director of defendant No.1 and also as defendant No.2 and signed at
two places on Vakalatanama. It clearly shows that he was well aware of
filing of Summary Suit against him. Therefore, his contention that when
he received letter from the Office of the Official Assignee then he came
to know about filing of Suit No.303/2017 does not appear believable
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one. Therefore, on the ground that he came to know about filing of
present Summary Suit after receiving letter from the Official Assignee
and therefore, delay condoned cannot be condoned. Hence, there are
no sufficient grounds to condone delay in filing Notice of Motion.
22. Ld. Advocate for the defendant cited judgment of the Hon'ble
Bombay High Court in case of Ashok Mohansing Bajaj H.U.F. vs.
Elegant Pharmaceuticals Ltd. & Ors., 2002(2) ALL MR 242, in which
it is held that, “an acceptor of a bill of exchange cannot be considered to
be guarantor since he is the principal debtor himself. The liability of
acceptor is independent since by operation of law, an acceptor of bill of
exchange is also a debtor. It is not even necessary under law for the
creditor to file a suit against the drawer of a bill of exchange since it is
open to such creditor to file a suit for recovery of an amount of bill of
exchange against the acceptor of bill of exchange alone because acceptor of
a bill of exchange is the principal debtor himself”. In the present suit also
defendant No.2 has admitted that he has signed as acceptor on the Bill
of Exchange. Therefore, his liability is independent. Therefore, this case
law is squarely applicable to the case in hand.
23. As discussed above, defendant No.2 has signed on the Bill of
Exchange in his personal capacity as acceptor. Therefore, it is his
personal liability to pay decreed amount. Therefore, on the grounds
taken by defendant No.2, decree cannot be set aside. As discussed
above, there are no reasonable grounds to condone delay in filing
Notice of Motion and allow Notice of Motion. Hence, following order:
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ORDER
Notice of Motion No.3457 of 2019 stands rejected.
(SONALI P. AGARWAL)
Judge,
Date: 20.01.2020 City Civil Court,
Gr. Bombay.
Dictated on : 20.01.2020
Transcribed on : 20.01.2020
Signed on : 20.01.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.01.2020 At 02:14 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
20.01.2020
Judgment/Order signed by P.O. on 20.01.2020
Judgment/Order uploaded on 24.01.2020
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