Final Order 1

Order Details: Miscellaneous appeal
Pdf Text: SJ 296 of 2019 .. 1/ .. in Suit 1229 of 2017
MHCC010133932019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.296 OF 2019
SUMMARY SUIT NO.1229 OF 2017
Shri. Mitesh U Khajanchi
Through Attorney holder,
Uttam S. Khajanchi,
R/a: B-11, Kasturchand Mill Compound,
M. C. Jawale Marg, Dadar West,
Mumbai – 400028.
....Plaintiff.
Versus
1.M/s.Veg King Agro Foods Process Pvt. Ltd.
2.Mr. Pradeep D. Landge
R/a: 1.G. No. 330, Pilanwadi, Takliphata,
Post Rahu, Taluka Daund Dist. Pune 412207.
2. Pradeep D. Landge,
Survey No. 616-2, final Plot No. 101,
Taradutta Park, Pune 412301.
....Defendants
Appearances :
Adv. Vijay Dedhiya For plaintiff.
Adv. Aditya Akhlekar For defendants.
CORAM : HER HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATED : 12th December, 2025
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SJ 296 of 2019 .. 2/ .. in Suit 1229 of 2017
ORDER
The present Summons for Judgment is filed with prayer to
make it absolute. The suit is filed for recovery of an amount of
Rs.5,00,000/- with further interest of 21% p.a.
2. In short, it is the case of the plaintiff that;
The plaintiff is engaged in the business of trading in food
products in the name and style of ‘Kaybee Enterprises’. In the month of
May, 2007, he came in contact with defendant No.2 who introduced
himself as director of defendant No.1. After several business
representation, plaintiff and his father were inducted as directors in
defendant No.1 company on 14.09.2007 and remained directors till
resignation on 01.04.2016. The defendant No.2 demanded
Rs.5,00,000/- for a locking period of two years and promised to pay
21% p.a compounding quarterly. In view of the guarantee and
undertaking given by defendant No.2, he advanced Rs.5,00,000/- vide
cheque No.201654 in November, 2007 which was cleared from the
account on 05.11.2007. However, the defendant No.2 failed to refund
the amount with interest inspite of several reminders. The amount is
reflected in the ITR for AY 2016-17.
3. After series of discussion and negotiation, in the month of
October, 2013, defendant agreed to refund Rs.5,00,000/- without
interest which plaintiff agreed vide email dated 10.10.2013. As it was
not paid, legal notice was issued on 19.07.2016 which was falsely
replied. Again legal notice dated 13.10.2016 and 31.12.2016 were
issued which were again falsely replied. A rejoinder was sent on
28.02.2017. As the amount was not paid, suit was filed.
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4. The defendant by filing Notice of Motion No.557/2021
prayed for leave to defend on the grounds that the suit is not
maintainable as a Summary Suit under Order XXXVII of the C.P.C as the
essential ingredients are not fulfilled. Therefore, the plaint be returned
as per Order VII Rule 10 of C.P.C. The defendant No.1 company is at
Taluka – Daund, Dist. Pune and the entire cause of action took place in
Pune, therefore, this Court is having no territorial jurisdiction to decide
the suit. The family members Uttam Sohanraj Khajanchi and plaintiff
were directors of defendant No.1 and were operating the accounts,
therefore, defendant No.2 is not liable for any transactions. The
defendant No.2 and his wife also invested the huge amount of
Rs.1,29,00,000/-, however, suffered loss as plaintiff and his family
members who were directors of defendant No.1 misused their authority.
5. The alleged amount of claim is of the year 2008 and was
demanded in the year 2013, therefore, the suit is barred by law of
limitation. The other 5 directors are not made party to the suit;
therefore, suit is bad for non-joinder of necessary parties. The plaintiff
in connivance with his father and grand father purposely opened
account of company at Dadar and the amount of Rs.5,00,000/- was
withdrawn by them. The plaintiff has not come to the court with clean
hands. Hence, dismissal of the Summons for Judgment is prayed.
6. The Advocate for plaintiff remained absent since long,
hence, by an order dated 26.08.2025 argument stage of plaintiff was
closed. Heard Adv. Aditya Akhlekar for defendants and gone through
the xerox copies of documents filed on record. According to Adv.
Akhlekar plaintiff’s own pleading shows that the alleged amount was
paid on 05.11.2007 and the alleged demand notice was issued on
19.07.2016 and the suit is lodged on 13.06.2017 which is hopelessly
barred by the law of limitation. He further submitted that the other
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directors of the defendant No.1 company are not joined as parties. The
suit is bad for non-joinder of necessary parties. The court is having no
jurisdiction as the defendant company is at Tal. Daund, Dist. Pune. They
have made out several triable issues which needs to be considered for
adjudication of dispute, hence, prayed for unconditional leave to defend
the suit.
7. The pleadings itself go to show that father and grand father
of plaintiff were inducted as directors in the defendant No.1 Company.
The pleading further go to show that the alleged amount of
Rs.5,00,000/- was given on 05.11.2007, it was firstly demanded on
19.07.2016 by way of legal notice. On this point Adv. Akhlekar had
raised the issue of limitation. I do find force in his submission, because
considering the date of payment and legal demand notice issued, the
issue of limitation would certainly play a deciding role while deciding
the suit. Thus, this is the first and crucial triable issue made out by the
defendants to grant them an unconditional leave to defend the suit.
8. It is material to note that while filing the SJ it is imperative
to file the original documents for the perusal of the Court. However, the
plaintiff failed to file the same. Therefore, they are not available for the
inspection of the Court. The Hon’ble Apex court
Neebha Kapoor vs.
Jayantilal Khandwala, AIR 2008 S.C.1117 held:
For the purpose of obtaining a summary judgment in terms of O.37,
original documents must be produced. Where the original documents
are not available, the plaintiff, is obligated to prove the loss of
documents and only because a suit has been entertained as a
summary suit, the same day itself may not be a ground for passing of
a judgment on mere asking.
9. In view of the preposition of law laid down in the above
referred authority and considering the fact that plaintiff too failed to file
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on record the original documents, therefore, I am of the view that it is a
second ground to grant an unconditional leave to defend the suit to
defendants. Thus, I am of the view that the defendants have raised
triable issues which will have to be gone through after the parties will
lead their respective evidence. Hence, the defendants are entitled for an
unconditional leave to defend the suit. In the result, I proceed to pass
the following order:
ORDER
1. The Summons for Judgment No.296 of 2019 is dismissed.
2. The Notice of Motion No.557 of 2021 is allowed and
defendants are granted an unconditional leave to defend the
suit.
3. The defendants are directed to file their written statement within
2 months from the date of this order.
4. The Summons for Judgment No.296 of 2019 is disposed of
accordingly.
5. The Notice of Motion No.557 of 2021 is disposed of accordingly.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:12.12.2025 City Civil Court, Mazgaon,
MUMBAI
Dictated on : 12.12.2025
Transcribed on : 12.12.2025
checked on : 15.12.2025
Signed on : 15.12.2025
( N. B. Lavte )
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI.
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.12.2025 at 05.22 p.m.
UPLOAD DATE AND TIME
(MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI N. B.Lavte
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
12.12.2025
Judgment/order signed by P.O. on 15.12.2025
Judgment/order uploaded on 15.12.2025
MHCC010133942019
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