Order 1

Order Details: Other
Pdf Text: CS 100189 / 2019
	Manoj - Rustom
Order (Exh.5 & Exh.9) 1 of 12
City Civil and Sessions Court, Greater Mumbai
Court Room No. 31
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100189 / 2019
MHCC010104032019
Plaintiff : Manoj Dhanji Solanki
VERSUS
Defendants : Mr. Rustom Nanabhoy Jeejeebhoy
Appearances
Plaintiff
: Adv. Shri Sanjay T. Manek
Defendants
: Adv. Shri Zubin Dalal
Summary Judgment No. 100003 / 2021
and
Summary Judgment No. 100002 / 2023
SJ No. 100003 / 2021 filed :
08.07.2021
Arguments over :
18.10.2023
Decided on :
20.10.2023
Duration : 02 Y 03 M 13 Days
Exhibit No.5
SJ No. 100002 / 2023 filed :
06.01.2023
Arguments over :
18.10.2023
Decided on :
20.10.2023
Duration :
09 M 15 Days
Exhibit No.9
Summary Judgments
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CS 100189 / 2019
	Manoj - Rustom
Order (Exh.5 & Exh.9) 2 of 12
COMMON ORDER
(Pronounced on this 20th Day of October, 2023)
Plaintiff has preferred Summary Judgment, for
decreeing the Suit.
Defendant has preferred Summary Judgment, for
dismissal of the Suit.
Parties to Dispute :
2) Manoj Dhanji Solanki, Mumbai, Maharashtra
(hereinafter,
Plaintiff) is Real Estate Consultant. He is Director of
registered company, L. M. Real Estate Consultant Pvt. Ltd.
Rustom Nanabhoy Jeejeebhoy is
defendant in the Suit.
3) Plaintiff Manoj Solanki has preferred three Commercial
Suits against defendants. Its relevant details are as follows :
Suit No. 100188 / 2019 100189 / 2019 100001 / 2020
Plaintiff Manoj Dhanaji
Solanki
Manoj
Dhanaji
Solanki
LA Crosse
Infrastructure
Real Estate
Defendants
1. Nanabhoy
Jeejeebhoy Ltd.
2. Rustom
Nanabhoy
Jeejeebhoy
3. Anil Siddesh
Ajinkya
4. Khursheed
Rustom Jeejeebhoy
Rustom
Nanabhoy
Jeejeebhoy
Rustom
Nanabhoy
Jeejeebhoy
Loan ( )	₹ 16,00,000 7,00,000 15,00,000
Claim ( )	₹ 20,41,840 8,93,200 19,66,200
Written
Statement Exh. 5
28.01.2020 Exh. 4
03.02.2020 Exh. 3
04.02.2021
Summary
Judgment by
plaintiff
100005 / 2021
Exh.8
20.07.2021
100003 / 2021
Exh. 5
08.07.2021
100004 / 2021
Exh.4
20.07.2021
Reply by
defendants Exh. 10
13.10.2021 Exh. 7
20.10.2021 Exh. 6
13.10.2021
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 3 of 12
Plaintiff’s
rejoinder Exh.11
22.11.2021 Exh. 8
22.11.2021 Exh. 7
22.11.2021
Summary
Judgment by
defendant
100001 / 2023
Exh. 12
06.01.2023
100002 / 2023
Exh. 9
06.01.2023
100003 / 2023
Exh. 8
06.01.2023
Reply by
plaintiff Exh. 14 Exh. 11 Exh. 10
In all three Suits, there is identical pleading in Plaints, Written
Statements, Summary Judgments and Replies.
Case of Plaintiff in Commercial Suit No. 100188 / 2019 :
4) In October 2016, November 2016 and June 2017,
defendant No. 2 approached plaintiff with request for monetary
help. Accordingly, plaintiff provided money to defendants, as :
Date
Amount ( )	₹ Mode
19.10.2016 10,00,000 RTGS
30.11.2016 1,00,000 RTGS
21.06.2017 5,00,000 RTGS
Total 16,00,000
5) Plaintiff, through letter Dt. 28.09.2017, forwarded its
Statement of Account for relevant period which were confirmed
by the defendants. In December 2017, plaintiff requested
defendant to repay .16,00,000/-. However, defendant neglected.	₹
Hence, plaintiff issued letter Dt.26.03.2018, asking defendants to
make repayment. However, through reply Dt. 05.06.2018,
defendants denied the liability. On said amount, defendants are
liable to pay interest @ 18 %. Hence, plaintiff preferred
Commercial Suit No. 100188 / 2019, for recovery of
.	₹
20,41,840/- with future interest.
Case of Plaintiff in Commercial Suit No. 100189 / 2019 :
6) In November 2016 and March 2017, defendant
approached plaintiff with request for monetary help. Accordingly,
plaintiff provided money to defendant, as follows :
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 4 of 12
Date
Amount ( )	₹ Mode
17.11.2016 4,00,000 RTGS
24.03.2017 3,00,000 RTGS
Total 7,00,000
7) Plaintiff, through letter Dt. 28.09.2017, forwarded its
Statement of Account for period from 01.03.2016 to 01.04.2017
which were confirmed by the defendants. In December 2017,
plaintiff requested defendant to repay .7,00,000/-. However,	₹
defendant neglected. Hence, plaintiff issued letter Dt.26.03.2018,
asking defendants to make repayment. However, through reply
Dt. 05.06.2018, defendants denied the liability. On said amount,
defendants are liable to pay interest @ 18 %. Hence, plaintiff
preferred
Commercial Suit No. 100189 / 2019, for recovery of
.	₹
8,93,200/- with future interest.
Case of Plaintiff in Commercial Suit No. 100001 / 2020 :
8) In December 2016 and February 2017, defendant
approached plaintiff with request for monetary help. Accordingly,
plaintiff provided money to defendant, as follows :
Date
Amount ( )	₹ Mode
28.12.2016 5,00,000 RTGS
01.02.2017 5,00,000 RTGS
02.02.2017 5,00,000 RTGS
Total 15,00,000
9) Plaintiff through letter Dt. 28.09.2017 forwarded its
Statement of Account for period from 01.03.2016 to 01.04.2017
which were confirmed by the defendants. In December 2017,
plaintiff requested defendant to repay .15,00,000/-. However,	₹
defendant neglected. Hence, plaintiff issued letter Dt.26.03.2018,
asking defendants to make repayment. However, through reply
Dt. 05.06.2018, defendants denied the liability. On said amount,
defendants are liable to pay interest @ 18 %. Hence, plaintiff
preferred
Commercial Suit No. 100001 / 2020, for recovery of
.	₹
19,66,000/- with future interest.
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 5 of 12
Written Statements of Defendants :
10) In all three Suits, defendants, in their Written Statement,
prayed for its dismissal of Suit, with heavy compensatory costs,
for following reasons :
1. In 2012, plaintiff approached defendant and showed
interest in developing properties of defendants. Relying
on those representations, defendant executed
Commission Agent Agreements in favour of L. M. Real
Estate Consultant and La Crosse Infrastructure Real
Estate, which are Companies of plaintiff.
2. Defendants individually and through its various
Companies paid ₹
. 69,00,000/- to plaintiff and his
Companies for expenses relating to development.
3. Despite said payment, plaintiff did not developed
properties and did not helped its sell to prospective
purchasers. Plaintiff had no professional expertise in
Real Estate.
4. Thereby, plaintiff played fraud upon the defendants and
breached the Agreements. For breach of various
Agreements, plaintiff is liable to pay . 1,35,59,500/-.
₹
5. Hence, by the end of 2014, defendant No. 2 called upon
plaintiff to refund entire amount. At that time, plaintiff
sought time to repay ₹
. 69,00,000/-.
6. Thereafter, Vide letter Dt. 16.10.2017, defendant
unilaterally terminated all the Agreements.
7. From time to time, plaintiff repaid ₹
. 16,00,000/- to
defendant. However, Plaintiff is showing said
repayment as loan. Plaintiff also issued false letters to
defendants on 26.03.2018, alleging that, it was
defendant who had sought loan from plaintiff. Said
letter was replied by the defendant on 05.06.2018.
8. Defendants had never approached plaintiff for loan.
9. Plaintiff never forwarded accounts for confirmation.
10. Plaintiff is liable to repay ₹
. 69,00,000/-. To avoid said
repayment, plaintiff had came out with false case.
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 6 of 12
11. In Suit No. 102771 / 2019 and 100189 / 2019, plaintiff
had stated that, he had advanced loan of ₹
. 1,65,000/-
and ₹
. 7,00,000/- respectively. Plaintiff is unauthorized
Money Lender, who has filed numerous proceedings.
12. Plaintiff do not have valid Money Lending License.
13. Suits is barred by Maharashtra Money Lending
(Regulation) Act, 2014.
14. Suit is barred by limitation.
15. Plaintiff has denied inspection of documents on which
plaintiff is relying.
Plaintiff’s Summary Judgment No. 100003 / 2021 :
11) Plaintiff has made payment of . 7,00,000/- through	₹
RTGS and in accordance with 4 Agreements for Commission
Agent. Despite Legal Notice, defendant has refused repayment.
As per plaintiff, documents filed by him are sufficient to prove
his case. Against it, defendants do not have any triable issue.
Hence, Summary Judgment, be allowed and Suit be decreed.
Reply by Defendants (to Summary Judgment 100003 / 2021) :
Defendant’s Summary Judgment No. 100002 / 2023 :
12) Defendants opposed the Summary Judgment of plaintiff.
Defendant also preferred own Summary Judgment for dismissal
of the Suit and dismissal of Summary Judgment of plaintiff.
For that purpose, they relied on similar grounds, which
they have stated in the Written Statement.
Re-joinder by plaintiff :
13) Suit is not barred by any law. All defenses are false.
Hence, Suit be decreed by way of Summary Judgment.
Points for determination :
14) Heard Adv. Shri S. T. Manek for plaintiff and Adv. Shri
Zubin Dalal for defendants. Perused Record. Points for
determination, findings and reasons are as follows :
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 7 of 12
Points
Findings
1. Is plaintiff entitled for reliefs
sought?......................................... In the Negative.
2. Is defendant entitled for reliefs
sought?......................................... In the Negative.
3. What Order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 to No. 3 :
15) All points being interconnected, are taken for common
discussion.
Notice Dt.26.03.2018 by plaintiff to defendant :
16) In Summary Judgment No. 100002 / 2023, defendant
has filed at Page No. 136, copy of Letter Dt. 26.03.2018,
allegedly issued by the plaintiff to Rustom Nanabhoy Jeejeebhoy.
As per defendant, said Notice discloses payment made
by the defendant to plaintiff. Hence, plaintiff has deliberately not
filed said letter on record.
At this stage of the trial, said Letter can be considered.
Its perusal shows that, in Para No. 6 and No. 7, the plaintiff
claimed as follows :
1. While developing properties, plaintiff was incurring
expenses. Hence, plaintiff asked defendant to make
payment.
2. Accordingly, parties executed Agreement for Expenses
on 01.03.2013 for period of one year, which was to be
automatically extended, unless mutually canceled by
both parties.
3. Accordingly, defendant agreed to pay . 5 lakhs per
₹
month to plaintiff.
4. Defendant issued Post Dated Cheques from March 2013
to December 2013 for . 4,50,000/- per month.
₹
5. Defendant paid . 4,50,000/- per month till August
₹
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Order (Exh.5 & Exh.9) 8 of 12
2013.
6. In September 2013, defendant requested plaintiff not to
deposit post dated cheques.
7. Defendant made another payment of . 9,00,000/- by
₹
cheque No.020722, Dt.14.02.2014 to plaintiff as
expenses for two months.
8. In July 2014, defendant assured that, instead of making
monthly payment of . 5,00,000/- to the plaintiff,
₹
defendant would increase the amount of commission
from 14 % to 15 % for all the transactions of all the
properties.
This Notice supports the defense that,
some payments were made
by defendant to plaintiff.
Rival Claims :
17) Both sides are claiming that, they provided money to
each other. So, evidence on these aspect, from plaintiff as well as
from defendant, becomes essential for adjudication of dispute of
Claim and Compensatory Costs.
Commission Agent Agreements :
18) Both plaintiff and defendants have filed photocopies of
all four Agreements for Commission Agent
(hereinafter,
Agreement). Execution of these Agreements is admitted fact.
Common points from these Agreements, are as follows :
1. All four Agreements are executed on 01.03.2013.
2. Agreements are executed by defendant Rustom
Nanabhoy Jeejeebhoy as First Part with L. M. Real
Estate Consultant or LA Crosse Infrastructure Real
Estate, through its Managing Director Manoj Dhanaji
Solanki as Second Part.
3. Defendant is having hundreds of Survey Properties at
Mumbai, Pune, Thane, Mahabaleshwar as :
i. Pune Mall Property (one Survey Property),
ii. Poiser Property, Thane (80 Survey Properties
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Order (Exh.5 & Exh.9) 9 of 12
of total 972 acres 8 ¼ Gunthas),
iii. Mahabaleshwar (8 Survey Properties of total
19 acres 5 ¼ Gunthas),
iv. Goregaon & Pahadi Goregaon Property (33
Survey Properties of total 225 acres 38 ¼
Gunthas)
v. Chinchpokali, Mumbai.
4. Plaintiff agreed to develop the properties.
5. Accordingly, defendant appointed and nominated L. M.
Real Estate and plaintiff Manoj Solanki as Sole Selling
Agent / Commission Agent for perfecting title of
defendant on various properties, for its development and
to negotiate the terms and conditions for sell.
6. In consideration, defendant was to pay commission @
14 % of the total benefit received by the defendant.
7. In Memorandum of Understanding executed between
parties, it was agreed that, plaintiff will professionally
manage the property.
19) Plaintiff and defendants, both are claiming their rights
and are imposing liabilities on the rival side.
However, when plaintiff has mentioned these
Agreements in his Plaint, it means, the relationship between
plaintiff and defendant does not appears to be of mere creditor
and debtor. But, it is also based on above four agreements.
So, aspects relating to specific performance, liability of
either party and so also its breach by one or the other party, will
require deliberation.
20) Unless and until these
Agreements are not subjected to
examination and cross-examination of the rival sides, the
claims
raised by the plaintiff cannot be considered. So, plaintiff cannot
be granted decree merely on the face of application.
Similarly, the
defenses raised by defendant also cannot
be considered. So, defendant also cannot be granted relief of
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 10 of 12
dismissal of the Suit merely on the face of application.
21) Plaintiff contended that, amount paid to defendant is
independent of these agreements.
When there is existence of agreements, then, said
contention cannot be accepted, at this stage. Had there been no
such agreements, then things would have been different.
In given facts and circumstances, burden is on plaintiff
to show that, its claim is independent of these agreements. For
that, the dispute needs to be subjected to trial.
Limitation :
22) In all three Suits, Plaintiff is claiming that, he advanced
money to defendant during 19.10.2016 to 21.06.2017.
Three Suits are filed by plaintiff on 11.10.2019,
11.10.2019 and 21.12.2019.
So, aspect of limitation will require adjudication.
Defendants are claiming that, they have paid amount in
accordance with Agreements dated 01.03.2013. They are also
claiming that, in 2014, they (defendant) realized breach of these
agreements by plaintiff and demanded refund of money from
plaintiff.
So, limitation regarding this claim of defendant will also
require adjudication.
Non-joinder :
23) In two Suits i.e. Commercial Suit No. 100188 / 2019 and
Commercial Suit No. 100189 / 2019, plaintiff Manoj Solanki is
claiming that, he has executed those four Commission Agent
Agreements, through its Company, L. M. Real Estate Consultant
Pvt. Ltd.
However, in both Suits, said Company is not party.
If plaintiff is claiming recovery on the strength of
Agreement executed by said Company, then said Company is
necessary party. However, there is no explanation from plaintiff
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 11 of 12
as to why said Company is not made party.
For this reason also, Summary Judgment preferred by
the plaintiff in these two Suits cannot be considered.
24) In Commercial Suit No. 100001 / 2020, plaintiff is La
Crosse Infrastructure Real Estate. However, its Director Manoj
Solanki is not party in said Suit. So, in this Suit also, Summary
Judgment preferred by the plaintiff cannot be considered.
Triable Issues :
25) There are four
Commission Agent Agreements. There
are also references to
Agreement for Expenses.
There are material propositions as
specific performance,
flow of funds, limitation, etc., which are alleged and denied by
rival parties, giving rise to issues which will require evidence for
proper adjudication.
If such dispute is adjudicated merely on the face of
application, without evidence and without giving the plaintiff and
defendant an opportunity to conduct cross-examination of each
other, then it may cause serious prejudice to both parties. It may
also give rise to multiplicity of the litigation. It will cause
prejudice to parties themselves. Hence, facts and circumstances
of the Suit warrants that, the dispute should be adjudicated only
on the strength of evidence of the parties.
26) In given facts and circumstances, it would be proper
that, both the parties are directed to contest the Suit and there
after, the dispute is decided. Hence, all Summary Judgments
preferred by plaintiff and all Summary Judgments preferred by
the defendant, in all three Suits, will have to be rejected.
Accordingly, following order is passed :
ORDER
1. Summary Judgment No. 100003 / 2021 (preferred by
plaintiff) is dismissed.
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	Manoj - Rustom
Order (Exh.5 & Exh.9) 12 of 12
2. Summary Judgment No. 100002 / 2023 (preferred by
defendant) is dismissed.
3. Proceeding of Summary Judgment No. 100003 / 2021
and Summary Judgment No. 100002 / 2023 are closed.
4. Order dictated and pronounced in Open Court.
5. Both sides be informed about their right to challenge
this Order and period of limitation for the same.
6. The record of Summary Judgment shall be part and
parcel of the main Commercial Suit No. 100189 / 2019.
Mumbai
Dated : 20.10.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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