Final Order 1

Order Details: Other
Pdf Text: ..1.. Summary for Judgment No.278/2019
MHCC010122922019 Presented on : 28/11/2019
Registered on : 28/11/2019
Decided on : 19/11/2024
Duration : 04Y 11M 21D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.278 OF 2019
(CNR NO.MHCC01-012292-2019)
IN
SUMMARY SUIT NO.928 OF 2017
1. MR. YOGESH J. MEHTA
Occupation : Retired, Ekta Co-Op. Hsg. Soc. Ltd.,
‘A’ Wing, Flat No.1204, Bldg. No.79, Tilak Nagar,
Chembur, Mumbai – 400089.
2. MR. JINISH YOGESH MEHTA
Occupation: Business, Ekta Co-Op. Hsg. Soc. Ltd.,
‘A’ Wing, Flat No.1204, Bldg. No.79, Tilak Nagar,
Chembur, Mumbai – 400089.
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] ..PLAINTIFFS
Versus
1. MRS. RAJAM MICHAEL ROBERT
Occ : Housewife, Flat No.101, A Wing, Bldg.
No.108, The Tilak Nagar Prabhat Co-Op. Hsg.
Soc. Ltd., Tilak Nagar, Chembur, Mumbai–400089.
1(a) REKHA MICHAEL ROBERT D/O. RAJAM
MICHAEL ROBERT.
Residing at Flat No.101, A Wing, Bldg. No.
108, The Tilak Nagar Prabhat Co-Op. Hsg.
Soc. Ltd., Tilak Nagar, Chembur,
Mumbai – 400089.
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(Since deceased)
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..2.. Summary for Judgment No.278/2019
2. MR. RICHIE MICHAEL ROBERT S/O/ RAJAM
MICHAEL ROBERT. Occupation : Service,
Residing at Flat No.101, A Wing, Bldg. No.
108, The Tilak Nagar Prabhat Co-Op. Hsg.
Soc. Ltd., Tilak Nagar, Chembur,
Mumbai – 400089.
3. MR. VIJAY ROKADE (Prop. M/s. PANNU ESTATE
AGENCY.
Occupation: Estate Agent, Shop No.158/159,
S.M.A. Pestom Sagar, Opp. Mac Donald,
Road No.2, Chembur, Mumbai – 400089.
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..DEFENDANTS
Appearance :-
Learned Advocate Archana Mahadik alongwith Advocate Ankit Rajput
holding for Advocate Manoj Bhatt for plaintiffs.
Learned Advocate Kalpana Rajput for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 19/11/2024.
O R D E R
1 This suit is filed by plaintiffs contending that they were
intending to purchase a flat belonging to deceased defendant No.1,
defendant No.3 acted as a broker. An agreement of purchase was
executed under the caption of Memorandum of Understanding
(hereinafter referred to as “MOU”) dated 05/03/2014. Plaintiffs have
paid Rs.30,00,000/- to the deceased defendant No.1 and defendant
No.2 in various installments. The payment of Rs.30,00,000/- in
installments is acknowledged in the MOU. It was agreed that the total
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..3.. Summary for Judgment No.278/2019
consideration of flat will be Rs.68,00,000/- and defendant No.1 will
execute the sale deed receiving entire amount. However, upon
requesting defendant No.1 to execute the sale deed as per the
agreement, accepted the remaining amount. Defendants avoided to act
upon the agreement and suggested to cancel the MOU. Accordingly,
the dissolution of said MOU was executed and defendants agreed to
refund the amount of Rs.30,00,000/-. The cheque dated 11/08/2014
of Rs.30,00,000/- was issued towards refund of earnest money. Upon
presentation for encashment, the said cheque returned dishonoured
with remark “FUNDS INSUFFICIENT”. When it was informed to the
defendants, they again requested to present it for second time, but
same was also dishonoured. Likewise on request, plaintiffs presented
the cheque for encashment for the third time, which was again
dishonoured. Thus, plaintiffs issued notice to the defendants calling
upon them to pay the amount under the cheque, but in vain.
Therefore, they filed this suit.
2 During the pendency of the suit, defendant No.1 died,
therefore, her daughter was brought on record as one of the legal heir.
Defendant No.2 who is the son of defendant No.1 is already on record.
3 After the service of writ of summons, defendants
appeared, thereafter, plaintiffs took out summons for judgment.
Defendant No.2 appeared in response to the summons for judgment
and tendered reply resisting the contention of plaintiff contending that
plaintiffs have received refund of earnest money from the deceased
defendant No.1. However, plaintiffs have retained so called cheque
received from deceased defendant No.1 in order to recover interest
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..4.. Summary for Judgment No.278/2019
and incidental cost from the defendants. It is the contention of
defendant No.2 that plaintiffs have filed criminal complaint for
dishonour of cheque, therefore, present suit is not tenable and as per
the provisions of Section 11 of Code of Civil Procedure. He further took
the plea that the suit is filed beyond limitation. It is the contention of
defendant No.2 that the MOU is executed between plaintiffs and
defendant No.1. He was not party to the MOU, nor the dissolution of
MOU. It is also contended that he has not issued any cheque towards
refund of amount as he is not liable to pay the amount and prayed for
dismissal of summons for judgment.
4 Defendant Nos.1(a) and 3 did not file their reply.
5 Heard learned advocate for plaintiffs and defendant No.2.
On perusal of the document on record, it reveals that the document of
MOU was executed between plaintiffs and deceased defendant No.1
which was witnessed by defendant No.3 and cancellation deed was
also executed between plaintiff and deceased defendant No.1, same
was also witnessed by defendant No.3. Thus, defendant No.3 appears
to be a broker between them. Just because defendant No.3 was the
witness to the document and was broker of the transaction, he cannot
be held liable for the payment of amount under the cheque.
6 So far as defendant No.1(a) is concerned, she is the
daughter of deceased defendant No.1 and the cheque is issued from
the joint account of deceased defendant No.1 and defendant No.1(a).
Thus, being legal representative and the joint account holder with the
deceased defendant No.1, she is liable to pay the amount under the
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..5.. Summary for Judgment No.278/2019
cheque alongwith defendant No.2, who is the son of deceased
defendant No.1. Defendant No.2 is claiming that no document is
signed by him. Entire documents are executed between plaintiffs and
deceased defendant No.1. Even if, no document is executed by
defendant No.2, he being the legal heir of deceased defendant No.1 is
responsible to discharge his liability alongwith defendant No.1(a),
being the son. Therefore, he cannot take escape. Defendant No.2 is
claiming that the entire earnest amount is refunded to the plaintiffs
and the plaintiffs have deliberately retained the cheque for misuse, this
contention itself shows that plaintiff is entitled for refund of earnest
money of Rs.30,00,000/-. Now, it is burden upon defendant No.2 to
establish the payment of amount by deceased defendant No.1. There is
nothing on record to show that deceased defendant No.1 has paid the
earnest money of Rs.30,00,000/- to the plaintiff. Thus, case of plaintiff
appears to be more probable that defendant No.1 has issued the
cheque of Rs.30,00,000/- towards refund of earnest money. Defendant
No.2 being the legal heir is required to pay the amount. Even if it is
presumed that defendant No.2 has good defence to raise, he is liable to
pay the amount under the cheque so as to raise defence. Consequently,
I proceed to pass following order :-
ORDER
1. Summons for Judgment No.278 of 2019 in Summary
Suit No.928 of 2017, is disposed of in terms of
following order -
2. Leave is granted to defendant No.2 to defend the suit
subject to depositing in this Court a sum of
Rs.30,00,000/- within a period of one month from
the date of order and shall file written statement
within 30 days, thereafter.
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3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an
ex-parte decree against defendant No.2 after
obtaining a non-deposit certificate from the PLA
Section.
5. Summary Suit No.928 of 2017 to proceed ex-parte
against defendant No.1(a).
6. Summons for judgment No.278 of 2019 stands
dismissed against defendant No.3.
7. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
( Shaikh Akbar Shaikh Jafar )
Judge, City Civil Court, Mazgaon,
Mumbai, C.R. No.84.
Date: 19/11/2024.
Dictated on : 19/11/2024.
Transcribed on : 21/11/2024.
Signed by HHJ on : 22/11/2024.
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..7.. Summary for Judgment No.278/2019
“Certified to be true and correct copy of the original signed order”.
22/11/2024
at about 5.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 19/11/2024
Order signed by Hon'ble Judge on : 21/11/2024
Order uploaded on : 22/11/2024
at about 5.15 p.m.
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