IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION VPH SUMMONS FOR JUDGMENT No. 148 OF 2008 IN S. SUIT NO. 390 OF 2008 Uttam M. Kale ... Plaintiff Vs. Shrikant L. Amdekar ... Defendant Mr. L. H. Patil, for the plaintiff. Mr. Tushar Goradia, for the defendant. CORAM : A.S.OKA, J. DATED : November 17, 2008. P.C. . Heard the learned counsel for the plaintiff. I have also heard the learned counsel appearing for the defendant. The plaintiff has filed the suit under Order XXXVII of the Code of Civil Procedure 1908 for recovery of a sum of Rs.8,50,000/- alongwith further interest @ 12% per annum. 2. The case of the plaintiff is that he is a retired Deputy Commissioner of Police and has been practicing as an advocate after his retirement. The case of the plaintiff is that the defendant is carrying on business in the name and style of M/s. Multipurpose Services Centre Ltd. as a Director thereof. In paragraph 3 of the plaint, the plaintiff has alleged that the defendant is running business in the name and - 2 - style of the said Limited Company. 3. The case of the plaintiff is that the defendant was introduced to him by one Mr. Suresh Bhide, an ex-employee of State Bank of India. The case of the plaintiff is that defendant was in need of money for his business purpose and requested the plaintiff to advance the sum of Rs.8,50,000/- as hand loan. According to the plaintiff, the defendant agreed to repay the loan amount with interest @ 12% per annum. The amounts of Rs.2 lakhs, Rs.1,50,000/-, Rs.2 lakhs, Rs.1 lakhs and Rs.2 lakhs were received by the defendant from the plaintiff on 16th August, 2000, 28th February 2001, 27th March 2001, 16th June 2003 and 1st September 2003 respectively. Reliance has been placed on the receipts issued by the defendant on the aforesaid dates. Typed copies of the said receipts have been annexed to the plaint. 4. The case of the plaintiff is that he learnt that the defendant had cheated number of persons by taking amounts from them by the same method. The plaintiff lodged a complaint with Matunga Police Station against the defendant on 11th October, 2008. After completion of investigation a charge sheet has been filed in the Court of the learned Metropolitan - 3 - Magistrate. Reliance is placed on a writing executed by the defendant on 19th October 2006 in favour of Inspector of Matunga Police Station, by which the defendant allegedly agreed to repay the outstanding amount by instalments, payable on 15th November 2006, 10th January 2007, 8th February 2007 and 31st March 2007. Reliance is also placed on a writing executed by the defendant on 30th January 2007 on Rs.50/- non-judicial stamp paper, in which it is recorded by the defendant that he has mortgaged Shop No. 8 where the business of M/s.Multipurpose Services Centre is conducted in favour of the plaintiff. According to the plaintiff, the defendant recorded the that possession of the said shop is handed over to the plaintiff in presence of his daughter. The case of the plaintiff is that though possession of the said shop was handed over to him in March 2007, defendant broke open lock of the shop, entered the shop and started running a business therein. Reliance is placed on a police complaint lodged by the plaintiff with the Senior Inspector of Matunga Police Station in that behalf. 5. To the Summons for Judgment taken out by the plaintiff, a reply has been filed by the defendant. The first contention raised in the reply is that the company by the name M/s. Multipurpose Services Ltd. - 4 - (hereinafter referred to as the "said Company") is a necessary and proper party to the suit as all the documents on which reliance is placed by the plaintiff have been allegedly executed by the said Company. It is contended that the alleged document of mortgage [Exhibit "H"] is not adequately stamped. In the reply it is stated that the said Company is doing business as travel agent having its registered office at the address disclosed in the cause title of the plaint. It is stated that one Mr. Suresh Bhide was a Director of the said Company. The said Company was in need of funds and the said Mr. Suresh Bhide requested the plaintiff to make available certain funds to the said Company. It is stated that amount was advanced by the plaintiff to the said Company and the documents have been executed by the said Company. 6. It is specifically stated in the reply that in January 2007 the defendant was called to the Police Station and was threatened that if he does not agree to repay Rs. ten lakhs within a period of ten days, he would be arrested. It is stated that plaintiff got the said Suresh Bhide arrested and pressurised the defendant to sign documents as a condition for release of Mr. Bhide, to execute a writing dated 30th January 2007. It is submitted that plaintiff has no cause of - 5 - action against the defendant. 7. Learned counsel appearing for the plaintiff invited my attention to the various documents annexed to the plaint. He has produced the original documents for perusal of the Court. He has submitted that the writing dated 30th January 2007 has been written by the defendant’s daughter on a stamp paper of denomination of Rs.50/- purchased in the name of the defendant and therefore, the allegation that the plaintiff pressurised the defendant to execute the said document is false. He submitted that the receipts on which reliance has been placed by the plaintiff show that the amounts were received by the plaintiff in his personal capacity. He submitted that there is no contractual relation between the plaintiff and the said company. He submitted that the writing dated 30th January 2007 itself shows that the defendant has received an amount of Rs.8,50,000/- and that he accepted his liability to pay the said amount. He has also placed reliance on the police complaint filed by the plaintiff as well as writing dated 19th October 2006 executed by the defendant. He therefore, submitted that the defendant has no defence and therefore, Summons for Judgment be made absolute. - 6 - 8. Learned counsel appearing for the defendant invited my attention to the various averments made in the reply and submitted that the said averments have remained unchallenged as no rejoinder has been filed by the plaintiff. He submitted that the receipts at Exhibit "A to E" are on the letterhead of the said Company which have been signed by the defendant in his capacity as the Managing Director of the said Company. Placing the reliance on the document at Exhibit "G", he submitted that the said document itself shows that the alleged liability is that of the said Company. He submitted that the case made out by the defendant in the reply that the writing dated 30th January 2007 was obtained from the defendant at the police station by pressuring the defendant has remained unchallenged. He submitted that in any case the said document cannot be read in evidence as a document creating mortgage as the same is not adequately stamped. He submitted that there is no contractual relationship between plaintiff and the defendant, hence a case is made out for grant of conditional leave. 9. I have carefully considered the submissions. The original receipts at Exhibit "A to E" produced by the plaintiff shows that the same are on the letter head of the said Company and the defendant has signed - 7 - the same as the Managing Director of the said Company. The plaintiff has placed reliance on writing dated 19th October 2006 signed by the defendant addressed to the Inspector of Matunga Police Station. Firstly, it must be stated that in paragraph 5 of the plaint, the plaintiff has specifically stated that the said writing dated 19th October 2006 has been given by the defendant to the Inspector of Matunga Police Station during the course of investigation of the criminal complaint filed by the plaintiff against the defendant. Thus, plaintiff is relying upon a statement of the defendant recorded/taken by the Inspector of Police during the course of instigation of an offence registered against the defendant at the instance of the plaintiff. Apart from this fact, the said writing appears to be signed by the defendant in his capacity as the Managing Director of the said Company. Second paragraph of the said writing reads thus- "The company will continue to pay monthly interest regularly till the entire deposit is repaid till March 2007." . The aforesaid portion of the said writing shows that the defendant accepted the liability of the said Company and not his personal liability. - 8 - 10. The plaintiff has placed reliance on writing dated 30th January 2007 allegedly executed by the defendant. The specific case made out by the defendant is that plaintiff got Mr. Vijay Bhide arrested and that the defendant was called to the police station in January 2007 and he was pressurised to execute the said writing. This averment is significant for two reasons. Firstly, the plaintiff is admittedly a retired Deputy Commissioner of Police; and secondly that there is no rejoinder filed by the plaintiff. It is to be stated here that the counsel for the plaintiff after arguing the matter sought time to file a rejoinder for dealing with the aforesaid statements. Obviously, time cannot be granted to the plaintiff after having argued the Summons for Judgment. 11. The defence of the plaintiff is that he has signed receipts and other material documents in his capacity as the Managing Director of the said Company. The contention is that assuming case of the plaintiff is true, it is the said Company which is liable to pay the amount to the plaintiff. On the basis of documents on which reliance is placed by the plaintiff, it cannot be said that the defence pleaded by the defendant is moonshine defence. In fact it appears to me that there - 9 - is a plausible defence raised by the defendant which needs trial. Therefore, a case is made out for grant of unconditional leave to defend the suit. Summons for Judgment is disposed of by passing following order. ORDER (i) Unconditional leave is granted to the defendant to defend the suit. (ii) Written-statement to be filed within a period of ten weeks from today. (iii) After written statement is filed, the suit shall be transferred to list of "Commercial Causes". Sd/- [ A. S. OKA, J.]