Final Order 2

Order Details: Other
Pdf Text: SJ.No. 281/2019 SU.No.3637/2013 - 1 -
MHCC010123702019 Presented on : 29-11-2019
Registered on : 29-11-2019
Decided on : 24-07-2026
Duration : 6 y, 7 m, 25 d
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMONS FOR JUDGMENT NO. 281 of 2019
IN
S. C. SUIT NO. 3637/2013
M/s Seth Properties .. Plaintiff
Versus
M/S M G Mittal And Co And Ors .. Defendant
Appearance :-
Ld. Adv. Mehul Rathod for Plaintiff a/w Adv. Dhanashree Pawaskar
Ld. Adv. Ajay Panicker for defendant no. 10 and 11
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 24/07/2026
O R D E R
(Dictated and Pronounced in open Court)
1 The plaintiff has preferred this summons for judgment no.
281/2019 claiming that summary suit 3637/2013 is instituted for
recovery of amount of Rupees 6 lakhs with interest thereon from
defendants on account of dishonor of bill of exchange.
2. The plaintiff is a partnership firm. Defendant No. 1 is also
a partnership firm, and Defendants No. 2 and 5 to 9 are its partners.
Defendant No. 10 executed a bill of exchange and issued a cheque of
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6,00,000/- towards payment of the debt. The said cheque was	₹
dishonoured. As the defendants avoided payment of the cheque
amount, the plaintiff has prayed for issuance of summons for judgment
against the defendants for recovery of 6,00,000/- together with	₹
interest at the rate of 18% per annum.
3. Defendants No. 10 and 11, in their affidavit-in-reply, have
strongly resisted the plaintiff’s claim. Their defence is that there exists a
real and bona fide dispute raising triable issues. They contend that the
plaintiff is not a registered partnership firm and that Mr. Dinesh Kumar
Seth is not a partner of the plaintiff firm. Therefore, the present
summons for judgment is not maintainable.
They further submit that there is no cause of action to institute the
present suit, which is barred by limitation and suffers from misjoinder
of parties. They argue that there is no privity of contract between the
plaintiff and Defendant No. 11. Defendants No. 10 and 11 cannot be
held liable as sureties since the principal debtor has already been
discharged. They also allege that the plaintiff has approached this
Hon’ble Court without clean hands.Accordingly, Defendants No. 10 and
11 pray that the summons for judgment be dismissed.
4. On 05/09/2022, my predecessor issued summons for
judgment against Defendants No. 10 and 11 after hearing both sides on
merits. The order dated 05/09/2022 in Summons for Judgment No.
281/2019 was challenged before the Hon’ble Bombay High Court in
Writ Petition No. 1655/2026. By order dated 17/03/2026, the Hon’ble
Bombay High Court quashed and set aside the order dated 05/09/2022
in Summons for Judgment No. 281/2019 and restored the matter to
the file of this Court for fresh decision on merits.
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5. Heard the learned Advocate for plaintiff as well as
defendant no. 10 and 11 at length. Perused record.
6. The learned advocate for the plaintiff vehemently argued
that the suit is within limitation as against Defendants No. 10 and 11.
He submitted that the right to sue accrues from the date on which the
cause of action first arose. In the present case, the defendants issued a
cheque dated 01/01/2012 and a bill of exchange dated 03/09/2010.
The suit was instituted in 2013, and therefore, it is within limitation. As
stated earlier, the issue of limitation has already been decided by my
learned predecessor, and hence it is not necessary to address the same
again
7. The learned advocate for the plaintiff vehemently argued
that amendment of the plaint can be permitted at any stage of the
proceedings. In support of this contention, reliance was placed upon
the judgment of the Hon’ble Supreme Court reported in (2024) 5 SCC
282, Vasantha (Dead) Through Legal Representative v. Rajalakshami
Alias Rajam (Dead) Through Legal Representative, wherein the Hon’ble
Supreme Court observed that amendment of the plaint may be allowed
at any stage of the suit, even at the second appellate stage.
8. The learned advocate for the plaintiff further submitted
that execution of the cheque amounts to an acknowledgment of a
legally enforceable liability, and upon its dishonour, consequences of
prosecution and punishment follow. He further contended that under
Section 30 of the Negotiable Instruments Act and Section 25(3) of the
Indian Contract Act, the issuance of a cheque constitutes a promise to
pay, thereby creating an enforceable debt. Once liability is
acknowledged, a fresh period of limitation begins.
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9 In support of this argument, reliance is placed upon the
judgment of the Hon’ble Bombay High Court in Narendra V. Kanekar v.
Bardez Taluka Co-Op. Housing Mortgage Society Ltd. & Anr. [2006 SCC
OnLine Bom 457], wherein it was observed that when a debt has
become barred by limitation, Section 25(3) of the Contract Act provides
that a written promise to pay furnishes a fresh cause of action. In other
words, Clause (3) of Section 25 of the Contract Act does not revive a
dead right for the right is never extinguished but rather resuscitates the
remedy to enforce payment by suit. If payment can be enforced by suit,
it retains the character of a legally enforceable debt as contemplated by
the explanation to Section 138 of the Negotiable Instruments Act.
10. Per contra, the learned advocate for the defendants
strenuously argued that the defendants have a good and substantial
defence to the claim on its merits. Therefore, the plaintiff is not entitled
to a decree by way of summons for judgment. In support of this
contention, reliance was placed upon the judgment of the Hon’ble
Bombay High Court reported in
Bramhapal Panchal v. Union of India
[2016 (1) MhLJ 279], wherein the Hon’ble Court observed that while
granting conditional or unconditional leave to defend, the nature of the
defence raised is a relevant factor to be considered.
11. On perusal of the record, it appears that the plaint was
rejected under Order VII Rule 11(d) of the Code of Civil Procedure
against Defendant No. 1 and Defendants No. 5 to 9 by order dated
08/09/2017 in Notice of Motion No. 2683/2016. The suit has abated
against Defendants No. 2, 3, and 4. Defendant No. 10 is a company,
and Defendant No. 11 is its director. It is also a matter of record that
Director, Defendant No. 12, expired during the pendency of the suit.
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12. The delay has been condoned by my predecessor in Notice
of Motion 1451/2026. Once the delay is condoned the same issue
cannot be reagitated before same court.
13. The defendants raised an honest and bona fide dispute
regarding the registration of the partnership firm. They specifically
contended that the person who verified the plaint and initiated the
summons for judgment is not shown in the Register of Firms as a
partner of the plaintiff firm. This Court is satisfied that such defence
raises a triable issue under Section 69(2) of the Indian Partnership Act,
1932, as it goes to the root of the matter.
14. The defendants further raised a defence that the persons
affirming the plaint and the affidavit in support of the summons for
judgment were not shown in the extract of the Registrar of Firms as
partners of the plaintiff firm. They further contended that the plaintiff
firm was dissolved on 06/12/2012, and therefore, the suit is not
maintainable.
15. The defect in the plaint is not curable, as it goes to the very
maintainability of the suit. Therefore, the plaintiff cannot remedy the
defect by re-affirmation, re-verification, or substitution of a different
deponent. At this stage, the status of the person who verified the plaint
and filed the affidavit in support of the notice of motion is itself in
dispute. Consequently, the defendants have satisfied this Court that
they possess a good defence to the claim on its merits. The ratio laid
down in Bramhapal Panchal (supra) is squarely applicable to the
present case, whereas the principles laid down in Vasantha, K.K.
Ramkrushnan, and Narendra are not applicable at this stage.
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16. The defendants, by raising disputes regarding the
registration of the partnership firm, the status of the deponent, and the
non-curable defects in the plaint, have raised triable issues. The
defendants have disclosed a substantial defence. Therefore, the plaintiff
is not entitled to leave to sign judgment, and the defendants are
entitled to unconditional leave to defend. The defence raised indicates
that the defendants have a fair and bona fide case. The defence is
neither dishonest nor unreasonable. Accordingly, this Court is satisfied
that Defendants No. 10 and 11 are entitled to unconditional leave to
defend. Hence I pass following order :
ORDER
1. The defendant no. 10 and 11 have disclosed real and bonafide
dispute raising the triable issues.
2. In view there of unconditional leave to defend is granted to the
defendants.
3. The defendants shall file written statement within 4 weeks from
today.
4.Summons for judgment No. 281/2019 is disposed of accordingly
5.No order as to costs.
(S.M. BUKKE)
Judge,
City Civil Court,Gr. Mumbai.
Date: 24.07.2026 C.R. No. 03
1. Pronounced on : 24.07.2026
2. Dictated directly on Computer : 24.07.2026
3. Printed on : 24.07.2026
4. Signed on : 24.07.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 24.07.2026 /7.10 p.m.
NAME OF STENOGRAPHER (Grade-1) (Durgesh V. Mahajan)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
24.07.2026
JUDGMENT/ORDER signed by P.O. on 24.07.2026
JUDGMENT/ORDER uploaded on 24.07.2026
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