The Bombay High Court dismissed a writ petition filed against the judgment and order dated 11.08.2021 passed by the City Civil Court, Mumbai, rejecting Petitioners/Plaintiffs’ application for summary judgment. The Court observed that the defence of the defendant, inter alia, on the point of limitation is substantial.
Brief Facts:
The Petitioners are the Plaintiffs in a commercial suit instituted for the recovery of money with interest. The case pleaded in the plaint is that Plaintiff No.1, who is in the business of trading in property and financing, was approached by Defendant for financial assistance in the form of a loan of Rs.50,00,000/-. The Plaintiffs paid Rs.50,00,000/- to the Defendant on May 27, 2015. Defendant issued two post-dated cheques and a Bill of Exchange was executed by Defendant for the said amount of Rs.50,00,000/- with the due date of October 30, 2015. On presentation, the cheques were dishonoured with the remark ‘insufficient funds’.
Notice dated June 28, 2019 was issued at the behest of Plaintiffs demanding the due amount along with interest. The defendant raised the defence of the Plaintiffs not possessing a license under the provisions of the Maharashtra Money-Lending (Regulation) Act, 2014. The plaintiffs presented a Summary Suit which came to be registered as Commercial Suit No.134 of 2019. Plaintiffs filed Summons for Judgment possibly under an impression that the suit was treated as a summary suit. Leave was granted to the Plaintiffs to register the Chamber Summons as an application for Summary Judgment. When the application for Summary Judgment was pressed before the Civil Court, the same was rejected holding that there are triable issues involved in the suit. That order is the subject matter of challenge in the present Petition.
Contentions of the Petitioner:
The Learned Counsel for Petitioner argued that the suit is based on Bills of Exchange, the execution of which is not under dispute. The only defence raised by the defendant while replying to the Plaintiffs’ notice on August 9, 2019 was about non-possession of a moneylender's license, which is not a requirement for a suit based on Bills of Exchange as per the settled position of law. The admission of the claim can be inferred on the basis of the defendant’s letter dated August 5, 2015, issuance of post-dated cheques, and non-denial of receipt of Rs.50,00,000/- by Defendant.
Further, the Counsel argued that since there is an admission of claim on the part of the Defendant, the Court could not have granted leave to defend without the condition of deposit of the admitted amount.
Contentions of the Respondent:
The Learned Counsel for the Respondent opposed the petition and argued that the application filed by thw Plaintiffs for Summary Judgment was not maintainable. He argued that the Suit was originally filed as a Summary Suit and averments made in paragraphs 14 and 18 of the Plaint leave no matter of doubt that what was originally filed was a Summary Suit. Summary Suit was otherwise not maintainable in so far as a prayer for payment of interest is concerned as the Bills of Exchange did not provide for payment of interest.
Further, the Counsel argued that the suit is hopelessly barred by limitation.
Observations of the Court
Further, the Court was of the view that no case was made out for the City Civil Court to pronounce a summary judgment on the claim of Plaintiffs under Order XIII Rule 6 of the Code. The plaintiff did not make out a case for pronouncement of judgment or even for a conditional order of leave to defend.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that it is not possible to record a finding at this juncture that there is a certain possibility of success of the claim of the plaintiffs. Hence, no error was committed by the City Civil Court in passing the impugned order.
Case Title: M/s. Ashok Commercial Enterprises & Anr. vs Rajesh Jugraj Madhani
Coram: Hon’ble Justice Sandeep V. Marne
Case no.: WRIT PETITION NO. 10573 OF 2022
Advocate for the Petitioner: Mr. Darshit Jain, Ms. Neuty Thakkar, Ms. Parichehr Zaiwalla, and Mr. Tushar Goradia
Advocate for the Respondent No.1: Mr. Anoshak Davar, Mr. Nirav Shah, and Mr. Nishant Tanna
Read Judgment ;
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