ash 1 sj-373.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 373 OF 2009 IN SUMMARY SUIT NO. 1879 OF 2009 Ismail Adam Shaikh. .. Plaintiff Vs. Growfast Agro Developers & Another. .. Defendants -- Shri Vivek Kantawala for the Plaintiff. Shri Shripad H. Murthy along with Ms Shobha Pawar i/by Ravindra Parekh & Co. for Defendant Nos. 1 and 2. -- CORAM : A.S. OKA, J DATED : 27TH JANUARY, 2011 ORAL JUDGMENT : . The Plaintiff has filed the above suit for recovery of a sum of Rs.26,18,356.15 ps together with interest on Rs.25,00,000/- at the rate of Rs.12% per annum. 2. The case of the Plaintiff in short is that from 1997 till mid of 1999, he was staying with the 2nd Defendant’s mother and 2nd Defendant in his capacity as a close relative. According to his case, he advanced money to the 1st Defendant and to the 2nd Defendant’s mother as friendly loan from time to time. It is stated that the Plaintiff made payments to the 2nd Defendant, her mother and sisters for the purposes ash 2 sj-373.09 of renovation of the house and furniture from time to time. It is alleged that the Plaintiff had to pay towards the medical bills of the 2nd Defendant and her family by way of friendly gesture. It is alleged that the 2nd Defendant owes an aggregate amount of Rs.23,00,000/- to the Plaintiff which is not restricted to friendly loan but also includes the amounts spent by the Plaintiff for the 2nd Defendant and her family members. The Plaintiff has alleged that the 2nd Defendant filed false criminal complaints against him. He stated that on his request, certain members of the family intervened in the matter and as a result, the 2nd Defendant handed over three cheques in the amounts of Rs.10,00,000/- dated 9th February, 2009, Rs.10,00,000/- dated 9th February, 2009 and Rs.5,00,000/- dated 9th February, 2009 aggregating to Rs.25,00,000/-. According to the case of the Plaintiff, the said cheques were drawn on the account of the 1st Defendant towards full and final settlement of the amounts spent or advanced by the Plaintiff including the interest. It is stated that the 1st Defendant is a proprietary concern of the 2nd Defendant. The Plaintiff has pointed out that the said cheques were dishonoured. Reliance is placed on the notice dated 13th March, 2009 issued by the Advocate for the Plaintiff to the Defendants. Reply thereto was issued by the 2nd Defendant on 27th March, 2009 raising various contentions. As the amount was not paid, the present suit has been filed. To the summons for judgment taken out by the Plaintiff, the 2nd ash 3 sj-373.09 Defendant has filed a reply raising various contentions. 3. Learned counsel appearing for the Plaintiff submitted that admittedly the cheques were drawn by the 2nd Defendant of the account of 1st Defendant in favour of the Plaintiff in the total amount of Rs. 25,00,000/-. He pointed out that the 2nd Defendant is the sole proprietor of the 1st Defendant. He pointed out that in the reply to the suit notice, the fact that the bank account stands in the name of the 1st Defendant of which the 2nd Defendant was the sole proprietor has been admitted. He submitted that in the reply, the fact that the cheques were issued is also admitted. He invited attention of the Court to the various contentions raised in the reply to the summons for judgment. He invited attention of the Court to Paragraph 20 of the reply and pointed out that the fact that the bank account was opened in the name of the 1st Defendant by showing her name as its Proprietor has been admitted. He submitted that the material contents of the reply are vague. In any event, it is stated that the 2nd Defendant has signed the cheques. He pointed out the averments made in Paragraph 47 of the reply. He pointed out that though the 2nd Defendant had an opportunity to deny her signatures appearing on the said three cheques, she has made a vague statement that she cannot say that the signatures on the said three cheques were her signatures. He submitted that such evasive ash 4 sj-373.09 stand taken by the 2nd Defendant shows that the cheques were admittedly issued and signed by the 2nd Defendant which have been dishonoured. He submitted that the defence raised by the 2nd Defendant is completely bogus and this is a case where leave to defend cannot be granted to the 2nd Defendant. He submitted that the decree must follow. 4. Learned counsel appearing for the 1st and the 2nd Defendants submitted that the Plaintiff suggested to the 2nd Defendant that if the 2nd Defendant could invest Rs.3,50,000/- in his plantation business, the Plaintiff would start a new company in the name of the 2nd Defendant. He pointed out that at the instance of the Plaintiff; an account was opened in the name of the 1st Defendant showing the 2nd Defendant as the proprietor. He pointed out that there was never any substantial amount in the bank account of the 2nd Defendant and in fact the Plaintiff had kept in his custody the blank cheques on which signatures of the 2nd Defendants were allegedly obtained. He submitted that even according to the case of the Plaintiff, the loan was advanced not only to the 2nd Defendant but to the 2nd Defendant’s mother and other family members of the 2nd Defendant. He submitted that even going by the case made out in the Plaint, the 2nd Defendant cannot be held liable for payment of the entire amount. He submitted that the ash 5 sj-373.09 Plaintiff has made out altogether a new case in the rejoinder which itself is sufficient for granting unconditional leave. 5. The learned counsel appearing for the Plaintiff submitted that the alleged denial of the signatures on the said three cheques by the 2nd Defendant is evasive and, therefore, the defence is a moonshine defence. He submitted that even if a leave to defend is granted, the same will have to be subject to deposit of the claim amount. 6. I have given careful consideration to the submissions. The averments made in Paragraphs 3 and 4 disclose that according to the case of the Plaintiff, a total sum of Rs.23,00,000/- was paid by the Plaintiff which is not restricted to friendly loan to the 2nd Defendant but also included the amount spent by the Plaintiff for the 2nd Defendant and her family. It is specifically alleged that the Plaintiff made payment of various amounts to the 2nd Defendant, her mother and sisters. Thus, even according to the case made out in the Plaint and in particular, Paragraphs 3 and 4 of the Plaint, the liability of repayment of the sum of Rs.23,00,000/- is not only of the 2nd Defendant but also of her family members. The said three cheques allegedly issued by the 2nd Defendant totally amounted to Rs.25,00,000/- were drawn on the bank account in the name of the 1st Defendant. Even according to the case of the ash 6 sj-373.09 Plaintiff, no amount was advanced by the Plaintiff to the 1st Defendant. The suit is based on the said three cheques drawn on the account of the 1st Defendant. 7. The 2nd Defendant replied to the suit notice. In Paragraph 3 of the reply, the 2nd Defendant stated thus:- “Believing in good faith my client agreed to invest Rs. 350000/- in his plantation business and did advance him the same amount on 27/7/05, whereby your client floated a new firm in the name and style of M/s. Grow Fast Agrow Developers firm at his office at 21-Sunil Shopping Centre, J.P. Road, opp. Navrang Cinema, Andheri (w), Mumbai -58, in the name of my client in 05. And my client further states that it was your client who had some connections with the management of Corporation Bank at Versova, Mumbai, who opened a current account in the said branch in the name of said firm of my client, with the required introduction from his acquaintances and my client had to sign only wherever your client told her, and further that after one year your client told her that Rs.250000/- was the benefit for her firm and further told her that he shall invest same in the business of the said firm, thus my client woes Rs. 600000/- from your client which he should return to her. My client further states that she does not know as to what happened with that said account thereafter, because it was in the hands of your client as the business of the said firm was being run by your client alone.” ash 7 sj-373.09 8. In the same paragraph, the 1st Defendant proceeded to state thus:- “And my client further states that she never operated the said account till date nor she took the cheque book of that account from the said bank. But on the contrary I was your client who on 31/5/05 obtained the cheque book of the said account from the bank naturally in connivance with the bank officers and kept the said cheques till 11/02/09 unused, looking for an opportunity to misuse the same. And my client further states that she never agreed to give 3 cheques aggregating Rs.25 lacs to your client, nor she ever gave the same to your client, not she ever signed any cheques, not she ever was confronted by that of your client where she could inform your client that the balance available with the account is only with the proprietary concern. And my client further states that it is your client who misused the said three cheques from the said cheque book by forging her signature and by depositing the same with Corporation Bank and got them bounced knowing fully well the position of the said account, naturally to defraud my client.” 9. It is pertinent to note that the demand notice was issued to the 2nd Defendant not in her individual capacity but in her capacity as the proprietress of the 1st Defendant. 10. The learned counsel appearing for the Plaintiff made a reference to what is stated in Paragraph 47 of the reply filed by the 2nd Defendant to the summons for judgment. He made a reference to the following part of the paragraph. ash 8 sj-373.09 “47. …..I say that I cannot say that the signatures on the said three cheques are mine. I am unable to identify the same. I say that when I received the notice dated 13-3-2009 from the Ld. Advocates for the Plaintiff, I did not have copies of the cheques before me. It was on the basis of whatever I could recollect, I reply the said notice. Hence in my Advocates’ reply dated 27-3-2009 I have stated that I had not signed any cheques. I say that on 28-10-2009 I took inspection of the said three cheques and yet I am unable to identify my signature. I say that my signatures on the said cheques appear to have been very cleverly forged, hence I am unable to identify the same.” 11. It is true that the first part which is quoted above contains a vague denial. But the 2nd Defendant has relied upon the reply to the suit notice and has stated that after inspection of the three cheques was taken, she was unable to identify her signatures on the cheques. At this stage, it must be noted that in paragraph 4 of the rejoinder, the Plaintiff has come out with the following case :- “…..I therefore deny that there should be any written contract to pay the dues as this was friendly loan. However, there was an oral arrangement between Defendant No.2 and myself and to strength the verbal promise the Defendant No.2 issued the said cheque in advance. I further state that this was a Modus Operandi used by Defendant No.2 to extort maximum money from me.” 12. Thus, in rejoinder, an altogether a new case is made out regarding oral arrangement between the Plaintiff and the 2nd Defendant. ash 9 sj-373.09 A new case is also made out that the cheques were issued in advance. This case is not made out in the Plaint. This is relevant in the context of the fact that even according to the case made out by the Plaintiff in the Plaint, the liability was not only of the 2nd Defendant but it is contended that certain amounts were paid by the Plaintiff to the mother of the 2nd Defendant and to the sisters of the 2nd Defendant. Therefore, going by the assertions made in the plaint, the liability to repay the entire amount of Rs.23,00,000/- cannot be of the 2nd Defendant. It is pertinent to note that neither in the notice of demand, nor in the plaint, any break-up has been given regarding the amounts allegedly paid by the Plaintiff to the 2nd Defendant to her mother and to her sisters. The defence which is raised in the reply to the notice is raised by way of reply to the summons for judgment. The defences raised by the Defendants cannot be said to be moonshine or frivolous defences. Hence, a case is made out for grant of unconditional leave to defend the suit. 13. In view of the above, the summons for judgment is allowed. Unconditional leave is granted to defend the suit. Written Statement to be filed within a period of 12 weeks from today. The suit shall be transferred to the list of commercial causes. ( A.S. OKA, J )