Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
4219 of 2019.
MHCC010115572019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4219/2019.
IN
S. C. SUIT NO.2707/2019
Mr. Vardhaman C. Shah ...Applicant
/Plaintiff.
In the matter of :-
Mr. Vardhaman C. Shah ...Plaintiff.
V/s.
1.Mrs. Akshta Anvay Naik and anr. ...Defendants.
Appearances :-
Adv. Sajid Shamim i/b Shamim & Co. for plaintiff.
Adv. Santosh Raje for defendants.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
1
-- 1 of 6 --
Order in Notice of Motion No.
4219 of 2019.
Date : 21/12/2022.
ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to direct the defendants to deposit the sum of Rs.54,45,000/- in
the Court with liberty to the plaintiff to withdraw the same.
2. It is the case of the plaintiff that plaintiff has advanced
friendly loan of Rs.46,45,000/- in cash to Mr Anvay Naik. Plaintiff has
also given loan of Rs.8,00,000/- by cheque to the said Anvay’s company
M/s Concorde Designs Private Limited on personal assurance and
guarantee of said Anvay. Mr. Anvay committed suicide on 05.05.2018
due to stress and financial crisis. Defendants are the only surviving legal
heirs and the legal representatives. They have inherited various
properties upon the demise of deceased Anvay. After demise of Anvay,
plaintiff approached the defendants several times and requested them
to repay the loan given by him to the deceased Anvay. However,
defendants avoided to repay the amount. The deceased Anvay was
liable to pay dues to several people to the tune of several crores of
rupees. There is likelihood of defendants selling all the properties in
order to avoid the repayment to creditors and in order to defraud the
creditors. Plaintiff has learnt that the defendants are trying to sale and
dispose of the properties. Thus, the plaintiff has filed the present Notice
of Motion with the aforesaid prayer.
2
-- 2 of 6 --
Order in Notice of Motion No.
4219 of 2019.
3. Defendants filed affidavit in reply and denied the
contentions of the plaintiff regarding the suit claim. They have
contended that they are neither liable nor responsible or anyway
concerned with or party to the alleged transaction of personal loan as
narrated by the plaintiff. The plaintiff is not entitled to any relief
without adjudicating the documentary evidence. The deceased Mr
Anvay Naik never informed the defendants regarding the alleged receipt
of the loan and execution of the alleged cash vouchers by him during
his lifetime. Plaintiff did not take any action against the deceased for
the recovery of the alleged outstanding amount during his lifetime.
They have denied all the contentions of the plaintiff made in the plaint
and have prayed for dismissal of the Notice of Motion with
compensatory cost.
4. Heard Mr. Sajid Shamim, Ld. Advocate for the plaintiff and
Mr. Santosh Raje, Ld. Advocate for the defendants. Read written
arguments submitted by both the advocates.
5. Ld. Advocate for the plaintiff submits that defendants have
not disputed their relationship with the deceased. They are not sued in
personal capacity. Defendants are liable to pay the debt to the extent of
estate they inherited from the deceased. Defendants have admitted that
they have inherited properties. They have not given the statement that
they will not create third-party interest. The plaintiff has produced on
3
-- 3 of 6 --
Order in Notice of Motion No.
4219 of 2019.
record the copies of cash vouchers and statement to support the claim
and the plaintiff will establish his claim at the time of final hearing.
6. Ld. advocate for the plaintiff further submits that
defendants have not denied the signatures of the deceased on the cash
vouchers. There is no defence of total denial. The defence is of lack of
ignorance. Therefore, plaintiff has made out prime facie case.
Therefore, he urged that the defendants be directed to deposit the
amount in the Court.
7. Per contra, Ld. advocate for defendants submitted that
defendants have only admitted relationship with the deceased. The
plaintiff has to prove the loan transaction. The cash vouchers produced
by the plaintiff are not complete. There are various discrepancies and
even copies of certain vouchers are not supplied to the defendants. The
transaction is suspicious. The defendants had made requisition for
inspection of original documents but plaintiff did not provide inspection
of the original documents. The documents are suspicious. Plaintiff did
not issue any notice or file suit against the debtor during his lifetime.
The claim is yet to be adjudicated. Therefore, no such direction as
prayed by the plaintiff can be given to the defendants.
8. The plaintiff has sued the defendants to recover the alleged
friendly loan given by the plaintiff to the predecessor of the defendants.
Defendants have not disputed their relationship with the deceased
4
-- 4 of 6 --
Order in Notice of Motion No.
4219 of 2019.
Anvay Naik. It is pleaded that plaintiff’s nephew Mr. Akshit Balwantrai
Lakhani introduced Mr. Anvay Naik to the plaintiff. They were close
friends and were also having business relationship. His nephew
requested to give friendly loan without interest to Mr Anvay by
informing that Mr Anvay was in temporary need of financial assistance.
He gave loan in cash totaling to Rs.46,45,000/- without any interest
and Mr Anvay had signed various cash vouchers while taking loan from
the plaintiff. It is further pleaded that plaintiff also gave loan of
Rs.8,00,000/- by cheque to his company M/s Concord Designs Private
Limited on the personal assurance and guarantee of Mr Anvay.
9. Alongwith the plaint, plaintiff has annexed copies of loan
account statement, cash vouchers, ledger account and 7/12 extracts of
agricultural lands standing in the name of Mr. Anvay. As per the
documents produced by the plaintiff, the cash amount is advanced to
the deceased from 21.12.2016 to 21.04.2018 totaling to
Rs.46,45,000/-. The copy of ledger account is produced to show that
plaintiff has advanced an amount of Rs.8,00,000/- to Concord Design
Private Limited.
10. Ld. advocate for the defendants, during arguments has
pointed out certain discrepancies in the cash vouchers relied upon by
the plaintiff. As per his submissions, the cash vouchers are not
complete. As regards the discrepancies in the cash vouchers pointed out
5
-- 5 of 6 --
Order in Notice of Motion No.
4219 of 2019.
by the advocate for defendants are concerned, on perusal of the cash
vouchers it is apparent that all the columns of all the cash vouchers are
not completely filled up. However, the plaintiff has an opportunity to
prove those documents by leading evidence. At this juncture, it is
unnecessary to express any opinion on the genuineness of those
documents.
11. The plaintiff is seeking direction against defendants for
deposit of claim amount in the Court with liberty to the plaintiff to
withdraw the same. In my view, such direction can not be issued in the
facts of the present suit. Still the claim of the plaintiff is to be
established by the plaintiff by leading evidence. Until and unless the
claim of the plaintiff is crystallised, no case is made out by the plaintiff
to give any direction as prayed, to the defendants. The Notice of Motion
thus, deserves to be dismissed. Therefore, following order is passed:
ORDER
1. The Notice of Motion No.4219 of 2019 is dismissed.
2. The Notice of Motion No.4219 of 2019 is disposed of.
(SHRI S. B. PAWAR )
Judge
Date: 21.12.2022 City Civil Court, Gr. Mumbai
Declared on : 21.12.2022
Direct Typed On : 21.12.2022
Checked on : 22.12.2022
Signed on : 23.12.2022.
6
-- 6 of 6 --