Interim Order 1

Order Details: Other
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.281 OF 2019
(CNR NO.MHCC010123702019)
I N
S. C. SUIT NO.3637 OF 2013
(CNR NO.MHCC010062332013)
M/s Seth Properties ..Plaintiff
V/s.
M/s M G Mittal & Co. and others ..Defendants
Appearance :
Adv. Mehul Rathod for plaintiff.
Adv. Ajay Law Associates for defendant No.10 and 11.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 05/09/2022.
O R D E R
1 The plaintiff has taken out this summons for judgment
contending that summary suit is filed for recovery of amount of Rupees
Six Lakhs from defendants. The suit is based on Bill of Exchange
executed by defendant No.10 and who issued the cheque in payment of
debt. It is further contended that cheque is dishonoured and the
defendants avoided the payment amount under the cheque, therefore,
the defendants are liable to pay the amount under the Bill of Exchange.
The plaintiff prayed for issuance of summons for judgment against the
defendants for recovery of Rupees Six Lakhs jointly and severally with
an interest @18% p.a..
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2 The record discloses that the suit against defendant No.1,
5 to 9 came to be dismissed as per Order 7 Rule 11 of CPC, in view of
order passed in Notice of Motion No.2683/2016 in summary Suit
No.3637/2013. The case against defendant No.2, 3 and 4 came to be
abated. Now, the matter is proceeded against defendant No.10 and 11
only. Defendant No.10 is company and defendant No.11 is a Director.
It is also not disputed that the another Director defendant No.12 is also
died during the pendency of the suit.
3 Defendant No.10 and 11 replied resisting the contention of
the plaintiff, they took defence that the plaintiff is not registered firm.
The authorized person is not a partner. No document in support of
plaintiff's case that defendant No.10 and 11 stood as surety of
defendant No.1 to 9. He also prayed that summons for judgment be
rejected on the ground of delay.
4 Heard rival parties at length. Both plaintiff and defendant
No.10 and 11 have submitted their written notes of arguments in
addition to their oral submissions.
5 Insofar as delay is concerned, there is delay in applying
summons for judgment, however, as per order in Notice of Motion
bearing No.1451/2016, my Ld. Predecessor has condoned the delay in
applying for summons for judgment. Consequently, the defendant
No.10 and 11 cannot raises this objection again.
6 With regard to the registration of the firm is concerned, the
plaintiff firm has come with the case that it is a registered firm bearing
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registration No.BA 83211 (mentioned in the suit title itself). It is
pertinent to note that while applying for rejection of the plaint,
defendant No.1 and defendant No.5 to 9 did not raise the contention
that plaintiff firm is not registered. It is not disputed that defendant
No.1 to 9 are principal borrower, therefore, defendant No.10 and 11 are
stepping in the shoe of defendant No.1 to 9. Consequently, they cannot
raise any such objection, which is not raised by defendant No.1 to 9.
Defendant No.1 to 9 have not raised any objection that plaintiff firm is
unregistered and person appearing is not the partner. Therefore, I
found no force in the submissions of defendant No.10 and 11.
7 The plaintiff has filed original documents under the list
Exh. 3, which clearly shows that defendant No.10 has executed the Bill
of Exchange in favour of plaintiff for defendant No.1 and also issued a
cheque dated 01/01/2012. The cheque in question was in
acknowledgment of the Bill of Exchange. While deciding the Notice of
Motion No.2683/2016, it is clearly observed in Para (10) that the
liability to pay to plaintiff is exists against defendant No.10 due to
issuance of the cheque. It is an acknowledgment and limitation period
is extended against defendant No.10. Thus, the suit is filed within
limitation against defendant No.10 and 11.
8 The defendant is relying on the judgment passed by
Hon'ble Bombay High Court in case of Harilal Shah V/s. Manoj
Agarwal and others reported in 2021 SCC Online Bom 4946. I have
carefully gone through the Judgment, it is relating to the Criminal case.
The issue was regarding the enforceable debt. In the instant case, the
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documents i.e. Bill of Exchange dated 03/09/2010 and cheque dated
01/01/2012, clearly show that it was issued by defendant No.10 in
favour of plaintiff. The Ld. Counsel of defendant No.10 and 11 raised
issue that cheque was never presented for encashment, therefore,
plaintiff has no right to claim the recovery of the same. However, it is
pleaded by the plaintiff that defendant No.10 to 12 requested not to
present the cheque for encashment assigning the reason of their
financial constrains and has kept the plaintiff on promise to pay the
amount under the cheque. Even if, the cheque is not presented for
encashment, the plaintiff has right to claim the recovery within
limitation period. Therefore, I am of the view that the cited case is not
applicable to the instant case.
9 The defendant is relying on the judgment passed by Hon'ble
Supreme Court in case of Chintaman Dhundiraj V/s. Sadguru
Narayan maharaj Datta Sanstan and others reported in 1956 SCC
Online Bom 61. This case is related to the limitation period. In the
instant case, the suit is well within limitation. So also, defendant
No.10 to 12 have accepted the surety on behalf of principal borrower
i.e. defendant No.1 to 9 by way of executing the Bill of Exchange and
issuing of cheque. Therefore, defendant No.10 and 11 are liable to pay
the amount under the cheque.
10 Thus, the facts and circumstances are squarely in
favour of plaintiff and defendant No.10 and 11 are liable to pay an
amount under the cheque and Bill of Exchange and therefore, they are
entitled for issuance of summons for judgment. With this, I proceed to
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pass the following order :
O R D E R
1 Issue summons for judgment against defendant
No.10 and 11.
2 Summons for Judgment No.281/2019 in Summary
Suit No.3637/2013, is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 05/09/2022. C.R. No.03
Dictated on : 05/09/2022.
Transcribed on : 05/09/2022.
Signed by HHJ on :
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“Certified to be true and correct copy of the original signed order”.
08/09/2022 (Mrs. Vidya Abhijit Mande)
at about 06.00 p.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 05/09/2022
Order signed by Hon'ble Judge on : 06/09/2022
Order uploaded on : 08/09/2022
at about 06.00 p.m.
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