Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010099402019
Lodged on 27/09/2019
Registered on 01/11/2019
Decided on 18/07/2022
Duration 2Y : 9 M : 21D
EXHIBIT-16
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 1048 OF 2019
Akhilesh Madhusudan Sali,
of Mumbai, Aged 69 years, Indian
Inhabitant, having residence at 8,
Kennaway House, Ground floor,
Proctor Road, Grant Road,
Mumbai -400004.
...Plaintiff
Versus
Ramnandi Automobiles Pvt. Ltd.,
a private limited company
incorporated under the Companies
Act 1960, havng its registerd office at
Bansi Sadan, Chand Chaura, Gaya,
Bihar-823001.
...Defendant
Appearance :
Adv. Mr.Suraj Rupawate for plaintiff.
None for defendant (Exparte).
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Exparte Judg.in Sum SU No 1048/2019
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 18/07/2022
Judgment
Plaintiff has filed the present summary suit claiming decree of
Rs.1,01,579/- together with interest at the rate of 16% p.a. on principal
amount i.e. Rs.1,00,000/- till realization.
Plaintiff’s case in short is as under-
2. Plaintiff is a Limited Company working as a Fund Raising
Advisor who provides services for borrowing financial assistance. In the
year 2016, defendant had approached to the plaintiff for engaging its
services to avail the loan of Rs.45 crores. Therefore plaintiff approached
to one M/s.RJ Capital Overseas Pvt.Ltd. an advisory group who provides
assistance to raise funds/loan.
3. On 22/09/2016, a Memorandum of Understanding(MOU)
was executed between defendant, the Advisor i.e. M/s.RJ Capital
Overseas Pvt.Ltd. and the plaintiff as a “ Business Sourcing Associate”.
Under the said MOU defendant availed the services from the plaintiff.
Plaintiff introduced Advisor with the defendant, so as to raise fund. The
Advisor initiated the process to raise the loan, however, defendant
could not provide clear properties as a security, and ultimately loan
could not be sanctioned.
4. Plaintiff further contends that defendant has not paid single
penny to the plaintiff towards his services. However, some amount
was paid by the defendant to the Advisor. As the loan could not be
raised, defendant started harassing to the plaintiff and demanded
refund of fees paid by it to the Advisor. Plaintiff further contends that
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as he is a senior citizen, under undue pressure, coercion and threat of
action, made a payment of Rs.1 lakh to the defendant on 19/08/2019
through RTGS. The plaintiff was not legally bound to refund any
amount to the defendant which was received by the Agent. Plaintiff,
therefore, contents that an amount of Rs.1 lakh which was extorted
from him, shall be recovered from the defendant. Hence, the present
suit.
5. Defendant Company was duly served with the writ of
summons. However, it did not appear before this Court and as such suit
proceeded exparte against it.
6. In support of claim, plaintiff filed his affidavit of claim at
Exhibit-7 and reiterated his claim by recovery of Rs.1,01,579/- along
with interest at the rate of 16% p.a. Plaintiff has filed and relied upon
following documents.
Sr.
No.
Exhibit
No. Particulars
1 Exh.9 Copy of Memorandum of Understanding
dtd.22/09/2016
2 Exh.10 Printout of Letter received via Email dtd. 24/09/2016
3 Exh.11 Printout of Email by plaintiff on instructions of
defendant to M/s. R.J.Capital Overseas Pvt. Ltd. dtd.
29/01/2017
4 Exh.12 Printout of Email by plaintiff to defendant
dtd.20/04/2017
5 Exh.13 Printout of Email by defendant to plaintiff
dtd.9/08/2017
6 Exh.14 Statement of account dtd.20/08/2019
7 Exh.15 Original Certificate under Section 65B(4) of the Indian
Evidence Act, 1872 dtd. 28/01/2021
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7. So as to decide the present suit, following points arise for my
consideration. I have recorded my findings for the reasons, as under :-
Sr. No. Points Findings
1 Whether the present summary suit is
maintainable ?
-No-
2. Whether plaintiff is entitled to
recover an amount of Rs.1,01,579/-
from defendants?
If yes, at what rate interest?
-No-
3. What order and decree? As per final order
REASONS
As to Point No. 1-
8. The plaintiff in the plaint as well as in the affidavit in chief
has contended that an amount of Rs.1,00,000/- which has been paid by
him to the defendant by way of RTGS was in fact the payment under
pressure and coercion. Therefore he has filed the summary suit to claim
recovery of the said amount. It requires to be noted at this stage that
neither the plaint nor the claim affidavit of the plaintiff anywhere
reveals that the plaintiff at any point of time had issued demand notice
to the defendant, demanding the said amount. So also the plaintiff has
not placed on record any documents which shows that there was any
contract between him and defendant under which he is claiming the
refund of recovery of the said amount.
9. Sub Rule-2 of Rule 1 of Order XXXV of C.P.C. provides various
circumstances in which the summary suit would lie. Clause (b) of Sub
Rule 2 reads as under.
“(b) suits in which the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant, with
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or without interest arising-
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered
is a fixed sum of money or in the nature of a debt other than
a penalty; or
(iii) on a guarantee, where the claim against the principal is
in respect of a debt or liquidated demand only;
(iv) suit for recovery of receivables instituted by any assignee
of a receivable. ”
10. On perusal of the pleadings, it becomes clear that there is no
written contract between the parties. Plaintiff is not claiming recovery
of fixed sum of money from the defendant. Neither there is a claim of
any guarantee nor the suit for recovery of receivables instituted by any
assignee of a receivable. Thus, I find that the present suit is not at all
maintainable.
11. As noted above, the amount allegedly paid by the plaintiff do
not co-relate to the tripartite agreement i.e. MOU dated 22/09/2016.
Therefore, the payment of Rs.1,00,000/- by the plaintiff to the
defendant cannot be said to be based on any written contract.
Defendant has neither acknowledged liability of the plaintiff nor issued
any promissory note or bill of exchange in favour of the plaintiff.
Therefor there is absolutely no material on record to file the present
suit.
12. The summary suit are expected to precede by a demand
notice. In the matter in hand surprisingly there is no demand made by
the plaintiff seeking recovery of an amount of Rs.1,00,000/- from the
defendant at any point of time. For this reason also I find that the suit
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is not maintainable. Hence, I answer Point No.1 in negative.
As to Point No.2-
13. Plaintiff has claimed recovery of amount from the defendant.
It is his contention that the payment is wrongful. He relied on the
authority of the Hon’ble Bombay High Court in the case of Sri Sri Shiba
Prasad Singh vs Maharaja Srish Chandra Nandi on 18th July, 1949 and
on the judgment of the Hon’ble Delhi High Court in the case of National
Westminster Bank V/s. Intraport India Limited, decided on 07/09/2007,
2007 0 Supreme (Del) 1337.
14. So far as the case of the National Westminster Bank (supra) is
concerned, it deals with the situation of mistaken payment. In matter in
hand the plaintiff has not come with the case of mistaken payment and
therefore this authority is not helpful to him.
15. Case of Sri Sri Shiba Prasad Singh (supra) deals with the
Section 72 of the Indian Contract Act which also deals with the
mistaken delivery of something or mistaken payment. As observed
above in matter in hand the case is not of mistaken payment. Therefore
these authorities are not applicable in present facts and situation.
16. At the cost of repetition it is again needs to be noted that
there is no legal notice issued by the plaintiff to the defendant claiming
the amount, allegedly paid under pressure and coercion. Therefore, I
find that there is no cause of action to file present suit. For this reason
as well the suit is not maintainable and plaintiff is not entitled for the
decree.
17. As the findings to the Point No.1 is in negative and as there is
no cause of action to file the present suit, I hold that plaintiff is not
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entitled to the decree. Hence, I answer to Point No.2 in negative.
As to Point No.3-
18. As I answer to Point Nos. 1 and 2 are in the negative,
obviously plaintiff is not entitle for the relief of decree. Hence, I pass
following order.
ORDER
A. Summary Suit No.1048/2019 is dismissed with costs.
B. Decree be drawn up accordingly.
Date- 18/07/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 18/07/2022
Transcribed on : 20/07/2022
Signed on : 21/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/07/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
18/07/2022
JUDGMENT/ORDER signed by P. O. on 21/07/2022
JUDGMENT/ORDER uploaded on 22/07/2022
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