Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit No.29/2020
MHCC010115112019 Presented on : 18/11/2019
Registered on : 18/01/2020
Decided on : 06/08/2022
Duration : 02Y/06M/19D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No. 29/2020
Dilipkumar Atmaram Nagpal
Age 56 years, R/o. 405A, Neelkanth, 98,
Marine Drive, Mumnai 400 002 …PLAINTIFF
VERSUS
1. Reena Tinaaz Pvt. Ltd.
A/601604, Dynasty Business Park 151,
Andheri Kurla Road, Near J.B. Nagar
Metro Station, Opp. Sangam Cinema,
Andheri (East), Mumbai 400 059.
…DEFENDANTS
2. Uday Kantilal Desai
Age Not known, Occ: Buiness having
address at Flat No.2, Neelam Nagar
Building, No.11A, Phase 1, A.V.B. Phadke
Road, Mulund(E), Mumbai400 081.
3. Shailesh B Panchal,
Age Not known, Occ: Business
having address at B301, Sai Ashish CHS
Ltd Village Road, Opp. Santoshi Mata
Mandir, Bhandup(W), Mumbai400 078.
Ms. Rekha Shukla, learned Advocate for plaintiff
Mr. Maroof M. Khan, learned Advocate for defendants
CORAM : JUDGE SHRI.N.P.TRIBHUWAN (C.R.NO.32)
J U D G M E N T
(Delivered on 06/08/2022)
This is a suit u/sec. 6 of the Commercial Courts Act, 2015
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for recovery of sum of Rs.35,25,205/ with interest @ 18% p.a. on
principal sum of Rs.30,00,000/ from the date of suit till realization of
entire amount.
2] It is case of plaintiff that defendants requested plaintiff to
raise funds of Rs.48,00,000/ for their business. Accordingly, plaintiff
has paid the said amount to defendants on certain conditions through
account payee cheque No.001274 dtd.15/03/2018. The repayment
schedule mutually agreed between them. On 15/03/2018 defendant
No.1 drew a demand bill of exchange on defendant Nos.2 & 3 for sum
of Rs.48,00,000/ in favour of plaintiff. Defendant Nos.2 & 3 had
accepted the said bill of exchange for payment when said bill of
exchange was presented. Defendant No.1 paid interest upto
09/11/2018.
3] As per repayment schedule, defendant No.1 issued eight
cheques of Rs.6,00,000/ each towards repayment to plaintiff. However,
only three cheques honored and remaining five cheques were
dishonored. Hence, an amount of Rs.18,00,000/ received towards the
said bill of exchange and the amount of Rs.30,00,000/ is outstanding.
Thereafter, bill of exchange was presented to defendant Nos.2 and 3 for
payment of balance amount of Rs.30,00,000/ and thereafter to
defendant No.1 for payment of the said amount. However, defendants
dishonored the said bill of exchange. Subsequently, defendant No.1 had
issued cheque dtd.19/11/2018 of Rs.30,00,000/ towards the
repayment. On depositing the said cheque, the same was dishonored
with bank remark “Exceeds Arrangements”.
4] Plaintiff through his advocate had sent letter to defendants
on 08/02/2019 and called upon defendant to pay the outstanding sum
of Rs.30,00,000/ alongwith interest. Defendant Nos.2 and 3 inspite of
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3 Comm. Suit No.29/2020
receipt of the notice, failed to repay the said amount. Thereafter
plaintiff exhausted the remedy of the pre institution mediation but
matter could not settled in the said mediation process. Hence, this suit.
5] Defendant Nos.1 to 3 have filed written statement at
Exh.22 and contended that this court has no jurisdiction to entertain
and try claim of Rs.35,25,205/ because plaintiff has already filed
Criminal Complaint bearing No.2917/SS/2018 under the provisions of
Negotiable Instruments Act and the same is pending before learned
Esplanade Court, Mumbai.
6] Defendants contended that plaint is vague, general and
misconceived. Defendant Nos.2 and 3 are not the necessary parties and
therefore suit is bad for misjoinder of parties. Plaintiff has suppressed
the fact of criminal complaint and therefore, he is not entitled for the
relief claimed. He has filed this suit with malafide intention to make
wrongful gain from defendants. Defendants denied that plaintiff had
raised funds in the company of the defendants. But plaintiff has
advanced loan of Rs.48,00,000/ as a moneylender. Defendants have
already repaid Rs.18,00,000/. Defendants were not agreed to pay
interest. In view of above pleading defendants have denied all other
adverse contents of plaint. Learned predecessor has framed issues at
Exh.25. I recorded findings thereon for the reasons stated as under.
ISSUES FINDINGS
1 Whether plaintiff proves that in view of
bill of exchange dated 15/3/2018 the
defendants failed to pay balance amount
of Rs.30,00,000/? …Yes
2 Whether this court has jurisdiction to try
this suit? ...Yes.
3 What agreed rate of interest? ...@ 18% p.a
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4 What order and decree? ...As per final order.
REASONS
As to issue Nos.1 to 3:
7] Heard counsel of plaintiff. Defendants and their counsel
are absent. In order to prove his case plaintiff has examined himself at
Exh.8 and relied on following documents :
Exh.10 Letter of appointment dt.14/3/2018 issued by deft.
Exh.11 Letter dt.14/3/2018 issued by defendants for loan.
Exh.12 Bill of Exchange dt. 15/3/2018.
Exh.13 & 15 Bank Passbook of plaintiff.
Exh.14 Letter dt.15/3/2018 regarding installments.
Exh.16 Dishonored Cheque dt.19/11/2018 with bank memo.
Exh.17 Notice dt.8/2/2019 issued by Advocate of plaintiff.
8] Defendants have not examined any witness on their behalf.
As to point Nos.1 & 3:
9] Plaintiff/PW1 has reproduced all contents of plaint in his
chief examination. Defendants have not crossexamined the plaintiff.
Hence, evidence of plaintiff/PW1 remained unchallenged. His evidence
is supported by aforementioned documentary evidence. Exh.10letter of
appointment dtd.14/03/2018 shows that it was issued by defendant
No.3 Mr. Shailesh B. Panchal (Director of defendant No.1) to plaintiff
and therein requested for loan on bills of exchange facility for their
business requirements. Thus, it becomes clear that defendants requested
plaintiff to raise funds for their business. Entries in bank passbook of
plaintiff (Exh.13) shows that he has paid the amount of Rs.48,00,000/
to defendants on 20/03/2018. Defendants have not denied that they
had received Rs.48,00,000/ from the plaintiff. Their defence is that
they repaid amount of Rs.18,00,000/ to the plaintiff.
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10] Letter dtd.15/03/2018 (Exh.14 colly.) shows that
defendants have issued the said letter to plaintiff alongwith eight
cheques of Rs.6,00,000/each dtd. 13/04/2018, 15/05/2018,
15/06/2018, 16/07/2018, 14/08/2018, 14/09/2018, 15/10/2018,
09/11/2018 respectively towards the installment of contract of loan
received on bill of exchange dtd.15/03/2018 for Rs.48,00,000/. It is
also mentioned in the said letter that all these cheques signed by
defendant Nos.2 and 3.
11] As far as the demand of plaintiff to the defendants to repay
the said balance amount is concerned, the notice dtd.08/02/2019
alongwith RPAD receipt and cards (Exh.17 colly.) makes it clear that
plaintiff has through his advocate sent demand notice to defendants and
the said notice served upon the defendants. Inspite of service of the
notice the defendants failed to repay the balance amount.
12] According to defendants the plaintiff has filed complaint
under Section 138 of Negotiable Instruments Act regarding the same
subject matter and cause of action. Therefore, this court has no
jurisdiction to entertain and try this suit. However, on this point
learned counsel of plaintiff relied on case law of L. Nagendra Rao .v/s.
Sri Raghavendra Finance Corporation : 2006(1) DCR 319 A.P.HC.,
wherein held that
it is well settled that when a cheque is dishonored, it is always
open on the payee to proceed against the drawer both under civil
for recovery of amount due as well as criminal suit for the offence
under Section 138 of the Act. Legal presumption under Section
139 of the Act is that the cheque was issued for due discharge of
a debt and the burden lies on the drawer to discharge the same.
Even if the drawer was not convicted for the offence, it is always
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open for the payee to recover the suit amount by filing a civil suit.
The evidence in criminal case may or may not depend on the
result of the civil suit. In such cases, if requirements of Section 10
of the Civil Procedure Code are not satisfied, recourse to Section
151 of the Criminal Procedure Code, 1973 is impermissible for
staying the suit.
13] In the present suit it is admitted fact that plaintiff has also
filed complaint under Section 138 of NI Act. In view of aforesaid case it
is open to plaintiff to initiate Civil as well as Criminal action. Thus,
there is no force in the contention of defendant that this court has no
jurisdiction to entertain and try this suit. Therefore, non disclosure of
the said complaint will not cause prejudice to the defendants.
14] Defendants has also raised objection that this is money
lending transaction. On this aspect it is pertinent to mention that there
is no evidence on record that plaintiff carries on business of money
lending. On this point in case law of Shobhita Rani Kaushal Vs. Ketty
Jehangir H. Dhanjibhoy and Ors.: MANU/MH/1153/2008, wherein
defendant has obtained hand loan of Rs.35,000/ from plaintiff under
promissory note. Defendant failed to pay the said amount and therefore
plaintiff filed suit for recovery. Hon’ble High Court observed and held
that,
“ if one turns to the definition clause, it is clear that “business of
money lending” may be termed even as additional business. The
business of money lending imparts a notion or systematic,
repetition and continuity and that is the proper test to be applied.
For a person to be a moneylender, he must in the regular course
of business, advance loans. Isolated transaction is not covered
under the provisions of the Act.”
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15] In view of ratio laid down in above case law, this suit does
not cover under the provision of the Maharashtra Money Lending
(Regulation) Act, 2014. Learned counsel of plaintiff contended that
subject matter is within definition of commercial dispute defined under
Section 1(c) (i) and (xiii) of the Commercial Courts Act, 2015. As per
Section (1)(c) (xiii) Commercial Disputes means a dispute arising out of
subscription and investment agreements pertaining to the services
industry including outsourcing services and financial services.
16] In the present case as per letter (Exh.11) issued by
defendants, they requested plaintiff for loan on bill of exchange for their
business requirements. Letter (Exh.14] indicates that defendants issued
cheques for contract of loan received on bill of exchange. Thus, it seems
that defendant has availed financial services under sub clause (xiii) of
Section 1(c) of the Commercial Courts Act.
17] In view of aforesaid discussion and evidence it is
established that defendants have paid interest upto 09/11/2018 @ 18%
p.a. on principal sum. Evidence of plaintiff remained unchallenged and
it is supported by aforesaid documentary evidence. There is no reason
to disbelieve his testimony. Moreover, defendants admitted that they
have received Rs.48,00,000/ from plaintiff and they paid
Rs.18,00,000/. Considering all above facts, plaintiff proved that in view
of bill of exchange dtd.15/03/2018 defendants failed to pay balance
amount of Rs.30,00,000/. Hence, plaintiff is entitled for recovery of
said amount. Considering the nature of transaction and the prevailing
market rate of interest, it is desirable to grant interest @18% p.a.
Hence, plaintiff is entitled for principal sum of Rs.30,00,000/ plus pre
suit interest Rs.5,25,205/calculated @ 18% p.a. from 10/11/2018 to
31/10/2019. He also entitled for interest @ 18% p.a. from the date of
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suit till realisation of the entire amount. Thus, I answered issue Nos.1 to
3 as above and pass following order.
ORDER
1. Suit decreed with costs as under.
2. Defendant Nos.1 to 3 are directed to pay jointly and
severally the amount of Rs.35,25,205/ to plaintiff.
3. Defendant Nos.1 to 3 are directed to pay jointly and
severally an interest @ 18% p.a. on principal sum of
Rs.30,00,000/ from the date of suit till realisation of the
entire amount.
4. Decree be drawn up accordingly.
Date :06/08/2022.
(N.P. TRIBHUWAN)
Judge, City Civil Court, Mumbai
C.R.No.32
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Dictated on : 06/08/2022.
Checked on : 06/08/2022.
Signed on : 06/08/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08/08/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 06/08/2022.
Order signed by P.O. on 06/08/2022.
Order uploaded on 08/08/2022.
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