Final Order 2

Order Details: Copy of Judgment
Pdf Text: CS No.100031 / 2020
Ramchand – Reena Judgment (Exh.26) 1 of 15
MHCC010115082019 Suit Filed on : 08.11.2019
Arguments Heard : 11.10.2023
& 09.01.2024
Decided on : 20.01.2024
Duration : 04 Y, 02 M, 12 Days
City Civil & Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100031 / 2020 Exhibit No. 26
Plaintiff : Janesha Dilipkumar Nagpal
Through POA holder Dilipkumar Nagpal
405-A Neelkanth, 98, Marine Drive,
Mumbai 400 002
VERSUS
Defendants 1 Reena Tinaaz Pvt. Ltd.
A / 601-604, Dynasty Business Park 151,
Andheri Kurla Road, Near J. B. Nagar Metro
Station, Opp Sangam Cinema,
Andheri (East), Mumbai 400 059
2 Mr. Uday Kantilal Desai,
Flat No. 2, Neelam Nagar, Building No. 11A
Phase 1, A. V. B. Phadke Road,
Mulund (E), Mumbai 400 081
3 Mr. Sailesh B Panchal
B-301, Sai Aashish CHS Ltd.
Village Road, Opp Santoshi Mata Mandir,
Bhandup (West), Mumbai 400 078.
Appearances
Plaintiff
: Adv. Ms. Rekha Shukla
Adv. Ms. Yojana Gandhi
Defendants
: Adv. Shri Omkar Kakad
Suit for Recovery of ₹. 5,87,534/-
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J U D G M E N T
(Delivered on this 20th Day of January, 2024)
Suit is preferred for recovery of .	₹ 5,87,534/- with
interest @ 18 % per annum.
Case of Plaintiff :
2) Janesha Dilipkumar Nagpal, has preferred Suit through
Power of Attorney Dilipkumar Nagpal (hereinafter,
plaintiff).
Defendant No. 1 Reena Tinaaz Pvt. Ltd., is Private
Limited Company. Defendant No. 2 Uday Kantilal Desai and
defendant No. 3 Sailesh B Panchal are its Directors (hereinafter,
defendants / D1 / D2 / D3).
3) Defendants requested funds of .8,00,000/- to plaintiff.	₹
Hence, vide Cheque No. 0000100 Dt. 15.03.2018, plaintiff paid
said amount to D1. On 15.03.2018 itself, D1 drew Demand Bill
of Exchange on D2 & D3 for .8,00,000/-. Defendants also paid	₹
its interest till 09.11.2018 through Cheques.
4) As per agreed repayment schedule, defendants issued 8
Cheques of . 1,00,000/- each. From it, only 3 Cheques got	₹
encashed while 5 were dishonoured. Thus, plaintiff received .	₹
3,00,000/- while . 5,00,000/- is balance.	₹
5) When plaintiff presented Bill of Exchange of
.5,00,000/-, D2 & D3 sought time. Subsequently, D1 issued	₹
Cheque No. 222096, Dt. 19.11.2018 for . 5,00,000/- towards	₹
repayment of balance amount. However, said Cheque was
dishonoured with bank endorsement as,
Exceeds Arrangement.
6) On 08.02.2019, plaintiff issued Notice seeking
repayment and then subjected the dispute for Pre-Institution
Mediation where defendants appeared, but did not proceeded.
Hence, plaintiff preferred Commercial Suit No. 100031 / 2020,
for recovery of .5,87,534/- with interest @ 18 % p. a.	₹
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Case of defendants (Written Statement, Exh.8, Dt. 01.10.2021) :
7) Defendants opposed Suit and prayed for its dismissal
with compensatory costs, on following grounds :
1. Defendants have never obtained any loan and had never
made any repayment.
2. Suit is not maintainable before Commercial Courts.
3. Suit is bad for misjoinder of D2 & D3.
4. Plaintiff has also preferred Complaint U / Sec. 138 of
NI Act. It is pending before Learned MM, Esplanade
Court, Mumbai. Plaintiff cannot opt for simultenous two
proceedings.
Evidence of Plaintiff :
8) Plaintiff adduced oral and documentary evidence as :
PW1, Exh.13 : Evidence of Dilipkumar Atmaram Nagpal
Exh. 15 : Photocopy of Power of Attorney Dt. 10.12.2018
Exh. 16 : Original Bill of Exchange Dt. 15.03.2018 executed
by Reena Tinaaz Pvt. Ltd. in favour of Janesha D
Nagpal for . 8,00,000/-.
₹
Exh. 17 : Original letter Dt. 15.03.2018 issued by defendants
showing repayment schedule.
Exh. 18 : Bank Statement of plaintiff of debit and credit.
Exh. 19 : Certified copies of Dishonoured Cheque No.
222096, Dt. 19.11.2018 for . 5,00,000/- and its
₹
Bank Dishonour Memo.
Exh. 20 : Statutory Notice Dt. 08.02.2019 by plaintiff
seeking repayment from defendant. (with postal
receipt and acknowledgment).
Exh. 21 : Evidence closure pursis Dt. 07.02.2023.
Perusal shows that, on 17.11.2022, plaintiff filed
evidence affidavit of Dilipkumar Nagpal (Exh. 13) and exhibited
his documents on 09.01.2023.
Roznama Dt. 09.01.2023 shows that, on that day,
defendants were absent. Hence, my Learned Predecessor passed
Order of no cross-examination.
On 07.02.2023, plaintiff closed his evidence (Exh. 21).
Accordingly, Suit got adjourned for evidence of defendant.
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Evidence of defendants :
9) Defendant adduced oral and documentary evidence as :
DW1, Exh.25 : Evidence Affidavit of defendant No. 2 Uday
Kantilal Desai.
Exhibit A : Notarized Copy of Order Dt. 16.12.2022 from
Commercial Suit No. 41 / 2020, Ramchand
Nagpal Vs. Reena Tinaaz.
Perusal shows that, on 14.06.2023, defendants filed
evidence affidavit of D2-Uday (Exh. 25).
On next dates i.e. on 03.07.2023, 04.08.2023 and
02.09.2023, defendants’ witness did not appeared before the
Court for examination and cross-examination.
Hence, vide Roznama Order Dt. 02.09.2023, evidence
of defendants was closed.
Defendants filed Written Argument on 11.10.2023 at
Exh. 27 in Commercial Suit No. 100030 / 2020.
Points for determination :
10) Heard Adv. Ms. Yojana Gandhi with Adv. Ms. Rekha
Shukla for plaintiff and Adv. Shri Omkar Kakad for defendants.
Perused Record. Points for determination, findings and reasons
are as follows :
Issues
Findings
1. Whether plaintiff proves that an
amount of . 5,87,534/- is
₹
outstanding from defendants?...... Partly in Affirmative
2 Whether plaintiff prove that in
view of bill of exchange dated
15.03.2018, the defendants have
failed to repay the balance
amount to the plaintiff?................ Partly in Affirmative
3 Whether suit is maintainable?...... In the Negative.
4 Whether plaintiff has locus standi
to file suit against defendants?..... In the Negative.
5 Whether suit is bad on the ground
of misjoinder of parties?............... In the Negative.
6 Whether this Court has
jurisdiction to try and entertain
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the suit?........................................ In the Negative
7 Whether the plaintiff proves that
cause of action arose against the
defendant within jurisdiction of
this Court?.................................... In the Negative.
8 Whether plaintiff is entitled to
recover amount of . 5,87,534/-
₹
from defendants? If yes, at what
rate of interest?............................ In the Negative.
9 What order and decree?............... As per final order.
R E A S O N S
Two Suits :
Commercial Suit No. 100030 / 2020 :
11) Perusal shows that, Ramchand Atmaram Nagpal, the
Karta and Manager of Atmaram Kherajmal HUF, has preferred
Commercial Suit No. 100030 / 2020, for recovery of
.17,62,603/- against above defendants.	₹
Commercial Suit No. 100031 / 2020 :
12) Janesha Dilipkumar Nagpal, through Power of Attorney
Holder Dilipkumar Nagpal, has preferred Commercial Suit No.
100031 / 2020, for recovery of .5,87,534/- against above	₹
defendants.
13) In both Suits, pleadings and evidence of plaintiff as well
as defendant is identical. It is tabled as follows :
Suit No.
100030 / 2020 100031 / 2020
Plaintiff Ramchand Atmaram
Nagpal Janesha Dilipkumar
Nagpal
Status of Plaintiff Karta and Manager
of Atmaram
Kherajmal HUF Through POA
Defendants 1. Reena Tinaaz Pvt. Ltd.
2. Uday Kantilal Desai
3. Sailesh B Panchal
Status of defendants Defendant No. 2 and No. 3 are Directors
of defendants No. 1 Registered Company.
Funds demanded . 24,00,000/-	₹ . 8,00,000/-	₹
Amount paid .	₹ 24,00,000/- . 8,00,000/-	₹
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Payment date 15.03.2018 15.03.2018
Payment mode Cheque No : 000108
Dt. : 15.03.2018 Cheque No : 000100
Dt. : 15.03.2018
Name on Cheque Reena Tinaaz Pvt. Ltd.
Bill of Exchange 15.03.2018
Defendant paid
interest upto 09.11.2018, by Cheques
Cheques by
defendants 8 8
Each Cheque .	₹ 3,00,000/- .	₹ 1,00,000/-
Total cheque vlaue .	₹ 24,00,000/- .	₹ 8,00,000/-
Cheques cleared 3 3
Amount received . 9,00,000	₹ .	₹ 3,00,000/-
Amount balance . 15,00,000	₹ .	₹ 5,00,000/-
New Cheque by
defendant
Dt. : 19.11.2018
No. : 222099
. 15,00,000/-	₹
Dt. : 19.11.2018
No. : 222096
. 5,00,000/-	₹
Dishonoured reason Exceeds Arrangement
Legal Notice 08.02.2019 08.02.2019
Suit Filed 08.09.2019 08.09.2019
Claim .	₹ 17,62,603/-
+ 18 % interest . 5,87,534/-	₹
+ 18 % interest
PW1 Dilipkumar Atmaram Nagpal
DW1 D2 – Uday Kantilal Desai
14) Peculiar facts of both Suits are that, plaintiff filed his
evidence-affidavit and was ready for cross-examination. But,
defendants did not conducted his cross-examination. Throughout
trial, defendants did not gave any explanation for not conducting
such cross-examination. Thereby, defendants kept evidence of
plaintiff unchallenged.
15) Similarly, in both Suits, defendant filed his evidence-
affidavit, but he did not affirmed it and did not subjected himself
for cross-examination at the hands of plaintiff. Hence, said
evidence-affidavit of defendant looses its importance.
16) It was argued by Learned Counsel for plaintiff that, the
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evidence of plaintiff being unchallenged, Suit needs to be
decreed.
Against it, defendants challenged nature of Suit in the
category of Commercial Suit. It was argued that, it being solitary
loan transaction, it will not come under the nature of commercial
transaction. Hence, Suit needs to be dismissed.
Reasons as to Issue No. 1 & No. 2 :
1. Whether plaintiff proves that an amount of .	₹
5,87,534/- is outstanding from defendants?
2. Whether plaintiff prove that in view of bill of exchange
dated 15.03.2018, the defendant have failed to repay
the balance amount to the plaintiff?
17) Plaintiff has filed certified copy of Bill of Exchange Dt.
15.03.2018. It is at Exh. 16 in respective Suits.
18) In Plaint and evidence-affidavit, plaintiff claimed that,
said Bills of Exchange are signed and executed by defendants.
Said evidence of plaintiff is unchallenged from
defendants.
19) In
Commercial Suit No. 100030 / 2020, Ramchand
Nagpal Vs Reena Tinaaz, the defendants, in Para No. 16 of their
Written Statement, pleaded as follows :
16. This Hon’ble Court has no Jurisdiction to entertain
the present claim of the Plaintiff in the plaint with
interest or otherwise. It is not correct say that plaintiff
had raised funds in the Defendants Company but
advanced loan as a money lender for a sum of Rupees
17,62,603/- out of which the Defendants company has
already repaid Rupees 15,00,000/-.
20) In
Commercial Suit No. 100031 / 2020, Janesha Nagpal
Vs Reena Tinaaz, the defendants, in Para No. 15 of their Written
Statement, pleaded as follows :
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15. This Hon’ble Court has no Jurisdiction to entertain
the present claim of the Plaintiff in the plaint with
interest or otherwise. It is not correct say that plaintiff
had raised funds in the Defendants Company but
advanced loan as a money lender for a sum of Rupees
5,87,534 /- out of which the Defendants company has
already repaid Rupees 3,00,000/-.
Thereby, defendants admitted receiving money from plaintiff.
This admission with unchallenged evidence of plaintiff proves
that, plaintiff has advanced said amount to defendants and
accordingly, defendants executed said Bill of Exchange,
acknowledging the debt. Therefore, it is held that,
.	₹ 24,00,000/-
was received by defendant in Suit No. 100030 / 2020 and
.	₹
8,00,000/- in Suit No. 100031 / 2020.
21) Though defendants claimed part-repayment, however,
there is no evidence from defendants to show that, they have
repaid said amount. There is also no case raised by defendants
that, for some legal aspects, they are not liable to repay that
amount. Therefore, it is held that, liability of said amount
continues to exist on defendants. Accordingly,
Issues No. 1 & 2
are answered partly in affirmative.
Reasons as to Issue No. 3, No.4, No.6 & No. 7 :
3. Whether suit is maintainable?
4. Whether plaintiff has locus standi to file suit against
defendants?
6. Whether this Court has jurisdiction to try and entertain
the suit?
7. Whether the plaintiff proves that cause of action arose
against the defendant within jurisdiction of this Court?
22) Defendants have challenged maintainability of Suits on
ground that, single loan transaction do not satisfy essential
requisites of Sec. 2 (1) (C) of the Commercial Courts Act. Hence,
present Suit in nature of Commercial Suit is not maintainable.
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Provision of Sec. 2 (1) (C) of the Commercial Courts Act, 2015
23) For convenience, Sec. 2 (1) (C) of the Commercial
Courts Act, 2015, is re-produced as under :-
(c) “commercial dispute” means a dispute arising
out of--
(i) Ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement
and interpretation of such documents;
(ii) Export or import of merchandise or services;
(iii) Issues relating to admiralty and maritime law;
(iv) Transactions relating to aircraft, aircraft engines,
aircraft equipment and helicopters…..
(v) Carriage of goods;
(vi) Construction and infrastructure contracts…..
(vii) Agreements relating to immovable property ….
(viii) Franchising agreements;
(ix) Distribution and licensing agreements;
(x) Management and consultancy agreements;
(xi) Joint venture agreements;
(xii) Shareholders agreements;
(xiii) Subscription and investment agreements
pertaining to the services industry including
outsourcing services and financial services;
(xiv) Mercantile agency and mercantile usage;
(xv) Partnership agreements;
(xvi) Technology development agreements;
(xvii) Intellectual property rights relating to registered
and unregistered trademarks, copyright, …..
(xviii) Agreements for sale of goods or provision of
services;
(xix) Exploitation of oil and gas reserves or other
natural resources …..
(xx) Insurance and re-insurance;
(xxi) Contracts of agency relating to any of the above;
and
(xxii) Such other commercial disputes as may be
notified by the Central Government.
24) Suit can be treated as a commercial summary suit on the
mandate that, transaction has occurred between merchants,
bankers, financiers and traders and said transaction is of
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commercial nature.
25) Term ‘
merchant’ would cover a person who buy and
trade, in any commodity and therefore, the term as explained
correspond to all sort of traders, buyers and sellers. A
trader is,
necessarily a person who engages himself in trading in goods;
buying and selling them at profit, who buy and sell securities or
one who buys and sells commodities for others, in anticipation of
speculative profit. A ‘
financer’ is an administrator, collector of
taxes or one who is skilled in levying and managing public
money or as capitalist concerned in financial operations.
Thus, ordinary transactions of merchants, business,
financiers and traders, relating to mercantile documents, can only
fall within the purview of ‘commercial disputes’.
26) In backdrop of aforesaid provision, it is necessary for
the Plaintiff to satisfy following aspects :
1. Plaintiff is, merchants, bankers, financiers and traders.
2. The transaction is, Ordinary transaction, relating to
mercantile documents,
3. Similar transactions are regularly carried by Plaintiff,
with numerous people on numerous occasions.
4. Carrying similar transactions is profession of plaintiff.
5. Said transactions are recognised as, commercial
transaction.
6. The loan-amount was utilised by defendants for some
commercial activity.
It is in this backdrop, it is necessary to evaluate pleading and
evidence of the Plaintiff.
Profession of plaintiff :
27) As per Sec.2 (1) (C) (1) of the CCA, the transaction can
qualify to be called as commercial transaction, provided it is
carried out by,
merchants, bankers, financiers and traders.
28) In Commercial Suit No. 100030 / 2020, plaintiff
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disclosed about itself as :
The Plaintiff is an Indian Inhabitant of Bombay, the
Karta and Manager of Atmaram Kherajmal H.U.F.
having address as mentioned in the title of the plaint.
29) In Commercial Suit No. 100031 / 2020, plaintiff
disclosed about itself as :
The Plaintiff an Indian inhabitant of Bombay having
address as mentioned in the title of the plaint.
30) In respective Suits, plaintiff did not disclosed as to what
is its profession / business and what is its income source. In other
words, plaintiff did not disclosed his status as to whether he is,
merchant, banker, financier and trader.
Is plaintiff in business of advancement of loan :
31) Relevant pleading from Plaint Para No. 2 of
Commercial Suit No. 100030 / 2020, reads as :
2. The Plaintiff states that the Defendants requested
the Plaintiff to raise funds to the total value of Rs.
24,00,000/- (Rupees Twenty Four Lakhs Only) to which
the Plaintiff agreed upon on the Defendants signing
documents accordingly in their favour.
32) Relevant pleading from Plaint Para No. 2 of
Commercial Suit No. 100031 / 2020, reads as :
2. The Plaintiff states that the Defendants requested
the Plaintiff to raise funds to the total value of Rs.
8,00,000/- (Rupees Eight Lakhs Only) to which the
Plaintiff agreed upon on the Defendants signing
documents accordingly in their favour.
33) Aforesaid pleading of plaintiff in both suits as,
…..
Defendants requested the plaintiff to raise funds to the total…..
points that, plaintiff came with case that, it was on request of
defendant, plaintiff advanced loan of
.	₹ 24,00,000/- and
.	₹
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8,00,000/- to defendants.
34) It is not case of plaintiff carries
transactions of
merchants, bankers, financiers and traders, and is regularly
providing finance to numerous persons including defendants.
35) In fact, plaintiff maintained absolute silence about its
business / profession / commercial activity. So, it is very difficult
to conclude that, plaintiff is carrying out transactions which are
similar with transactions being carried out by merchants, bankers,
financiers and traders. It appears to be sole loan transaction
effected by the plaintiff.
No mercantile documents :
36) Plaintiff has annexed list of documents at Page No. 11
of the Plaint in both the Suits. These documents are as follows :
1. Copy of Bill of Exchange Dt. 15.03.2018.
2. Copy of Dishonoured Cheque with Bank Memo.
3. Copy of Plaintiff Advocate Letter Dt. 08.02.2019.
4. Copy of Non-Starter Report Dt. 20.07.2019.
5. Other relevant documents with the permission of this
Hon’ble Court.
Thereby, above documents relied by plaintiff, are related with
single loan transaction. From bill of exchange and cheque, it is
difficult to ascertain that, plaintiff is
merchants, bankers,
financiers and traders and the transaction which he has carried out
is
transactions of merchants, bankers, financiers and traders, So,
the single bill of exchange, being not related with commercial
transaction, cannot be clothed as mercantile document.
For what the defendant obtained the loan :
37) Normal business practice prevalent in the market is that,
creditor always ascertains purpose for which borrower seeks loan.
38) This being commercial suit, then the loan-transactions,
which is utilised for commercial purpose, can only come under
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the cover of commercial suits.
39) When Plaintiff is creditor and is advancing huge loan to
defendant, then it was expected that, plaintiff must have
ascertained purpose / need of the defendant.
However, in present case, the plaintiff nowhere
disclosed as to for what purpose the defendant sought the loan.
So, it is not possible to a certain/conclude that the loan that was
advanced, was utilized for commercial activity.
Conclusion :
40) In backdrop of provision and pleadings, following facts
are ascertained :
1. Throughout pleading, plaintiff came up with case that,
this is only transaction between him and defendant.
2. It is not case of plaintiff that, he is in business of
providing loans to numerous persons like defendant and
that he is having license to that effect.
41) Plaintiff came with case of solitary loan transaction
between himself and defendant.
There is no repeated trading transaction between
plaintiff and defendants.
Solitary transaction of advancing loan, on friendly
terms, is not ordinary transaction of
merchants, bankers,
financiers and traders, and cannot be termed as trade or
commercial transaction.
42) Said transaction cannot be called as Commercial
transaction for simple reason that, it is in the nature of money-
lending and it is not seen to have been facilitating flow of trade,
movement of commerce, servicing of business. So, Suits for
recovery of money, in nature of single loan transaction between
two entities, cannot come under Sec. 2 (1) (c) (i) of the Act.
43) Hence, it is held that, alleged loan transaction was not in
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the nature of commercial transaction but at the most it can be
termed as domestic loan transaction. Therefore, objections raised
by defendants regarding maintainability of the Suit, jurisdiction
of this Court to try the Suit, succeeds. Therefore,
Issue No. 3, No.
4, No. 6 and No. 7 are answered in Negative.
Reasons as to Issue No. 5 :
5. Whether suit is bad on ground of misjoinder of parties?
44) In Para No. 15 of WS, defendants pleaded that, D2 &
D4 are not necessary parties. Plaintiff came with case that, D1-
Reena Tinaaz is company with D2-Uday and D3-Sailesh as its
Directors. There is no D4 in the Suit.
45) This being Commercial Suit filed under Commercial
Courts Act and amended provisions of Code of Civil Procedure,
1908, then it is necessary for plaintiff and also for defendant to
substantiate its claim by cogent pleading and evidence. In the
present case, after making bare statement that, D2 to D4 are not
necessary parties, defendants did not took steps to cross-examine
the plaintiff or led his own evidence, to show as to how these
defendants are not related with D1-Reena which has accepted
loan and executed Bill of Exchange. Therefore, in absence of
cogent pleading and evidence, bare statement and defense that,
Suit is bad for misjoinder of parties, fails. Therefore,
Issue No. 5
is answered in Negative.
Reasons as to Issue No. 8 & No. 9 :
8. Whether plaintiff is entitled to recover amount of
. 17,62,603/- from defendants? If yes, at what rate
₹
of interest?
9. What order and decree?
46) Plaintiff failed to show that, regarding loan transaction
he can file Suit in nature of Commercial Suit under Commercial
Courts Act. Hence, it is held that, plaintiff cannot be granted any
relief. Therefore, his recovery Suit fails. Accordingly,
Issue No. 8
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is answered in Negative and Suit is disposed off by following
Order :
ORDER
1. Commercial Suit No. 100031 / 2020, Janesha D. Nagpal
– Reena Tinaz, is dismissed with costs.
2. Decree be drawn up accordingly.
3. Judgment dictated and pronounced in Open Court.
4. Plaintiff be informed about its right to challenge this
judgment and period of limitation for it.
5. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 20.01.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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