Final Order 1

Order Details: Miscellaneous appeal
Pdf Text: SJ 298 of 2019 .. 1/ .. in Suit 1230 of 2017
MHCC010133942019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.298 OF 2019
SUMMARY SUIT NO.1230 OF 2017
Shri. 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
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.49,06,523/- with further interest of 18% p.a.
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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 ‘Uttam Distributors’. 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 son 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 after several
representations asked plaintiff and his family members to advance
financial facility to defendant No.1 which would be repaid on demand
after a first lock-in period of two years, but continued to pay interest
18% p.a Compounded Quarterly and offered personal guarantee in
capacity as promoter/director. In view of the guarantee and undertaking
given by defendant No.2, plaintiff advanced intermittently a sum of
Rs.1,42,17,000/- by cheques from 13.10.2007 and 11.09.2008. After
repeated follow up and demand an amount of Rs.93,10,477/- was
repaid from November, 2008 to July, 2013, leaving an amount of
Rs.49,06,523/- as balance amount. 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.49,06,523/- without
interest which plaintiff agreed vide email dated 10.10.2013. As it was
not paid, legal notices were issued on 19.01.2015, 19.07.2016 and
30.08.2016 which were 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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SJ 298 of 2019 .. 3/ .. in Suit 1230 of 2017
4. The defendant by filing Notice of Motion No.558/2021
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 plaintiff and Mitesh Uttam Khajanchi were
directors of defendant No.1 and were operating the accounts, therefore,
defendant No.2 is not liable for any transaction. 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 2007-08 and
was demanded in the month of October-November, 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 son and grand father
purposely opened account of company at Dadar and the amount of
Rs.49,06,523/- 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 Aklekar for defendants and gone through the
xerox copies of documents filed on record. According to Adv. Aklekar
plaintiff’s own pleading shows that the alleged amount was paid
between 13.10.2007 and 11.09.2008 and the first demand notice was
issued on 19.01.2015 and the suit is lodged on 20.06.2017 which is
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SJ 298 of 2019 .. 4/ .. in Suit 1230 of 2017
hopelessly barred by the law of limitation. He further submitted that the
other directors of the defendant No.1 company are not joined as parties.
Therefore, 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 an
unconditional leave to defend the suit.
7. The pleadings itself go to show that plaintiff and his son
were inducted as directors in the defendant No.1 Company. The
pleading further go to show that the alleged amount of
Rs.1,42,17,000/- was given from 13.10.2007 and 11.09.2008. It was
firstly demanded on 19.01.2015 by way of first legal notice. On this
point Adv. Aklekar 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 was
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 in
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.
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SJ 298 of 2019 .. 5/ .. in Suit 1230 of 2017
9. In view of the proposition of law laid down in the above
referred authority and considering the fact of the present case in hand
wherein the plaintiff failed to file 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. 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.298 of 2019 is dismissed.
2. The Notice of Motion No.558 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.298 of 2019 is disposed of
accordingly.
5. The Notice of Motion No.558 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 H.H.J. 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
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