Deepak Raheja vs Tikamdas Kukreja
2022 Latest Caselaw 13043 Bom

                                                    SJ-36-21+COMSS+293-20.DOC

                                                                  Sayali Upasani



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION


              SUMMONS FOR JUDGMENT NO.36 OF 2021
                                IN
             COMMERCIAL SUMMARY SUIT NO.293 OF 2020
                               WITH
             INTERIM APPLICATION (L) NO. -29792 OF 2022

Shailesh Bhagoobhai Bhoolabhai                                    ...Plaintiff
Executor of Tikamdas Kukreja
                    Vs.
Deepak Raheja                                                 ...Defendant

Mr. Shanay Shah, Mr. A Patel, Ms. V. Shah, Mr. N. Vyas, Mr.D.
      Dave i/b AVP Partners, for Plaintiff.
Mr. Yash Momaya a/w M. Virjee, A. Agarwal i/b ABH Law, for
      Defendant.

                        CORAM:               N. J. JAMADAR, J.

                        RESERVED ON :        17th OCTOBER, 2022
                        PRONOUNCED           15th DECEMBER,2022
                        ON :
ORDER:-

1. This Commercial Division Summary Suit is instituted for

recovery of a sum of Rs.3,39,54,794.52/-, along with further

interest at the rate of 12% per aunnum on the principal sum

of Rs.2,50,00,000/- from the date of the institution of the suit

till payment and/or realisation.

2. The material averments in the plaint can be stated in

brief, as under:-

SJ-36-21+COMSS+293-20.DOC

a) Tikamdas Kukreja, the deceased plaintiff, had

known the defendant, who deals in the business of

development of real estate. In the Month of December,

2016, the defendant had approached the plaintiff for a

financial assistance of Rs.2,50,00,000/-. The defendant

assured to repay the said amount along with interest at

the rate of 12% per annum. Based on the

representations of the defendant, the plaintiff advanced

a loan of Rs.2,50,00,000/-, through RTGS, against a Bill

of Exchange, drown by the defendant.

b) On 20th December, 2016, the defendant along

with his wife and sons acknowledged the liability to pay

outstanding loan amount along with interest and the

defendant issued two cheques aggregating to the sum of

Rs.2,77,00,000/-, drawn on HDFC Bank, payable on 1 st

January, 2018. However, on presentment, both the

cheques, were dishonoured on account of "Insufficiency

of Funds", vide memo dated 27th March, 2018.

c) A demand notice under Section 138 of Negotiable

Instruments Act, 1881, was issued on 19 th April, 2018. It

was duly served on the defendant on 20th April, 2018.

The defendant neither complied with the demand nor

SJ-36-21+COMSS+293-20.DOC

gave reply to the said notice. Hence, this suit for

recovery of the outstanding amount based on the

dishonoured cheques.

3. In response to the service of the writ of summons, the

defendant appeared. Thereupon the plaintiff took out a

Summons for Judgment.

4. An affidavit-in-reply is filed on behalf of the defendant

raising multifold defences. First, according to defendant, the

transaction in question is one of illegal money lending. The

plaintiff has been engaged in the business of money lending

on interest sans a valid license. It is contended that apart

from the defendant, the plaintiff had lent money on interest to

few entities named in the affidavit-in-reply. Therefore, the

interdict contained in Section 13 of Maharashtra Money

Lending (Regulation) Act, 2014 (Money-Lending Act, 2014)

comes into play and no decree can be passed in favour of the

plaintiff.

5. Secondly, Mr.Tikamdas Kukreja, the original plaintiff

passed away on 4th February, 2021, and thus the suit

instituted by Mr. Shailesh Bhagoobhai Bhoolabhai, as his

constituted attorney, can not be proceeded with, as the Power

of Attorney stood extinguished. Thirdly, the suit is instituted

SJ-36-21+COMSS+293-20.DOC

without pre-institution mediation in breach of the mandate

contained in Section 12A of the Commercial Courts Act, 2015

("the Act, 2015"). Therefore, the suit does not deserve to be

entertained.

6. Fourthly, the suit-claim suffers from multifariousness.

Each of the cheques allegedly dishonoured gives rise to a

distinct cause of action and, resultantly, warrants payment of

separate Court fees. Lastly, it is contended that the plaintiff's

claim for interest is unconscionable and in teeth of the

provisions contained in The Interest Act, 1978 and The

Usurious Loans Act, 1918. All these defences raise triable

issues and, therefore, the defendant is entitled to an

unconditional leave to defend the suit.

7. An affidavit-in-rejoinder is filed on behalf of the plaintiff

controverting the assertions in the affidavit-in-reply.

8. I have heard Mr. Shanay Shah, the learned Counsel for

the plaintiff, and Mr. Yash Momaya, the learned Counsel for

the defendant at some length. With the assistance of the

learned Counsel for the parties, I have perused the averments

in the plaint, affidavit in support of Summons for Judgment,

affidavit-in-reply and rejoinder thereto. I have also perused

the documents placed on record.

SJ-36-21+COMSS+293-20.DOC

9. Mr. Shanay Shah, the learned Counsel for the plaintiff

submitted that the case at hand is an open and shut case. It

was urged that though multi-fold defences are sought to be

raised, yet the fact that the defendant had availed a loan of

Rs.2,50,00,000/-, from the plaintiff is not at all disputed. In

view of the clear and explicit admission as to the liability to

repay the principal amount, along with agreed rate of interest,

none of the defences merits any consideration. In the

circumstances of the case, according to Mr. Shah, the

defences are ex facie sham and frivolous and, therefore, the

defendant does not deserve leave to defend the suit.

10. In contrast to this, Mr. Momaya, the learned Counsel for

defendant would urge that the fundamental object of

proscribing money lending on interest is required to be kept in

view. In the case at hand, the plaintiff has resorted to device

of advancing loan against the Bill of Exchange to circumvent

the provisions of The Money-Lending Act, 2014. Comparing

and contrasting the provisions of Section 10 of The Bombay

Money-Lenders Act, 1946 and Section 13 of the Money-

Lending Act, 2014, Mr. Momaya submitted that the bar under

Section 13 of the Money-Lending Act, 2014, is to any suit

instituted by a Money-Lender. Mr. Momaya submitted that the

SJ-36-21+COMSS+293-20.DOC

defendant has furnished the names of the persons whom the

plaintiff had advanced money on interest, as a business, and,

therefore, the defendant deserves an opportunity to

substantiate the said defence by adducing evidence.

11. Mr. Momaya further submitted that the dispute in

question does not fall within the ambit of the definition of

commercial dispute under Section 2(c) of the Act, 2015.

Therefore, the plaint must be returned for presentment to

proper Court. Lastly, since the declaration by this Court in

the case of Deepak Raheja Vs. Ganga Taro Vazirani 1, that the

provisions contained in Section 12A of Act, 2015, are

mandatory, has been upheld by the Supreme Court in the

case of Patil Automation Private Limited and Others Vs.

Rakheja Engineers Private Limited,2 the institution of the suit

without mandatory pre-institution mediation must entail the

consequence of rejection of plaint, urged Mr. Momaya.

12. To begin with, the challenge to the institution of the suit

for want of pre-institution mediation mandated by Section

12A of the Act, 2015. In the case of Deepak Raheja (supra), a

Division Bench of this Court, disagreeing with the view of a

1 2021 SCC Online Bom 3124 2 2022 SCC Online SC 1028

SJ-36-21+COMSS+293-20.DOC

learned Single Judge that the provision of pre-institution

mediation under Section 12A of the Act, 2015, is directory,

ruled that Section 12A of the Act, 2015 is mandatory, and a

Commercial suit of specified value which does not

contemplate interim relief under the Act, 2015, can not be

instituted unless the plaintiff exhausts the remedy of pre-

institution mediation in accordance with such manner and

procedure as may be prescribed by Rules made by the Central

Government.

13. Mr. Momaya is right in his submission that the view

recorded by this Court in the case of Deepak Raheja (supra)

was upheld by the Supreme Court in Patil Automation

Private Limited (supra). However, the further submission of

Mr. Momaya that since in the case at hand the suit was

instituted without resorting to pre-institution mediation it

must entail the consequence of rejection of the plaint does not

merit acceptance. In the case of Patil Automation Private

Limited (supra), the Supreme Court by invoking the doctrine

of prospective overruling made the declaration that Section

12A of the Act, 2015 is mandatory itself prospective by making

it operative from 20th August, 2022.

SJ-36-21+COMSS+293-20.DOC

14. The declaration and directions of the Supreme Court in

paragraph No. 92 set at rest the controversy sought to be

raised on behalf of the defendant.

15. Paragraph No. 92 reads as under:-

...."92.Having regard to all these circumstances, we would dispose of the matters in the following manner. We declare that Section 12A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11. This power can be exercised even suo moto by the court as explained earlier in the judgment. We, however, make this declaration effective from 20.08.2022 so that concerned stakeholders become sufficiently informed. Still further, we however direct that in case plaints have been already rejected and no steps have been taken within the period of limitation, the matter cannot be reopened on the basis of this declaration. Still further, if the order of rejection of the plaint has been acted upon by filing a fresh suit, the declaration of prospective effect will not avail the plaintiff. Finally, if the plaint is filed violating Section 12A after the jurisdictional High Court has declared Section 12A mandatory also, the plaintiff will not be entitled to the relief...."

(emphasis supplied)

16. While making the declaration that Section 12A is

mandatory prospective, the Supreme Court carved out certain

exceptions. One of the exception was, if the plaint was filed

violating Section 12A after the jurisdictional High Court had

declared Section 12A mandatory. The judgment of the

Division Bench of this Court in the case of Deepak Raheja

SJ-36-21+COMSS+293-20.DOC

(supra) was delivered on 1st October, 2021. The instant suit

was lodged on 30th June, 2021, before this Court declared

Section 12A mandatory. Resultanly, the prospective

declaration made by the Supreme Court in the case of Patil

Automation Private Limited and Others (supra), will have full

play and the plaintiff can not be deprived of the benefit of the

said prospective declaration.

17. The second challenge based on the dispute not falling

within the ambit of 'commercial dispute' under Section 2(c) of

the Act, 2015, also does not carry much substance. Mr.

Momaya made an endeavor to demonstrate that the dispute in

question does not fall within the meaning of "commercial

dispute" as envisaged by Section 2(1)(c)(i) of the Act, 2015.

According to Mr. Momaya, the transaction in question is

essentially of a loan simplicitor and does not partake the

character of ordinary transactions of merchants, bankers,

financiers and traders.

18. To bolster up of this submission, Mr. Momaya placed

reliance on an order passed by Calcutta High Court in the

case of Ladymoon Towers Private Limited Vs. Mahendra

Investment Advisors Private Limited in IA No. GA/4/2021 in

CS/99/2020, decided on 13th August, 2021, and another

SJ-36-21+COMSS+293-20.DOC

order passed by this Court in Summons for Judgment No.9 of

2021, in Commercial Summary Suit No. 6 of 2021, Bharat

Huddanna Shetty Vs. Ahuja Properties & Developers & 2 Ors,

dated 13th July, 2021.

19. "Commercial dispute" is defined under Section 2(1)(c)(i)

of the Act, 2015 as under:-

"(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;"

20. Evidently, whether a dispute falls within the ambit of

Section 2(1)(c)(i) is, by its very nature, rooted in facts. The

decisions relied upon by Mr. Momaya essentially turned on

the facts of those cases with which the Court was confronted.

It is true that in the case of Ambalal Sarabhai Enterprises

Limited Vs. K.S. Infraspace LLP And Another3, the Supreme

Court has not approved a wide construction of the definition

of "commercial dispute". However, the issue as to whether the

dispute in a given case constitutes a "commercial dispute"

must necessarily be decided in the backdrop of the facts of

the said case.

3(2020) 15 SCC 585

SJ-36-21+COMSS+293-20.DOC

21. In the case at hand, in my view, the following factors

assumes significance. First, the deceased plaintiff claimed

that the loan was advanced to the defendant, who was dealing

in a real estate business, to discharge his statutory dues.

Second, the Bill Of Exchange against which the loan was

advanced, over the drawal of which there is no dispute, clearly

records that the loan was advanced for a business purpose.

Third, the letter dated 20th December, 2016, suggests that the

defendant availed loan from the plaintiff and his companies

regularly. Fourth, the plaintiff seems to have advanced the

amount to the defendant in the regular course of business as

is evident from the ledger account maintained by the plaintiff.

In the circumstances, I find it rather difficult to accede to the

submission that the transaction in question is one of a loan

advanced by an individual to another without there being any

element of commercial interest therein.

22. This leads to me to the principal defence of illegal

money lending. Mr. Momaya, the learned Counsel for the

defendant made an earnest endeavor to draw home the point

that the legislative change brought about by the Money-

Lending Act, 2014, has not been properly appreciated in the

judgments which have been rendered on the issue of money

SJ-36-21+COMSS+293-20.DOC

lending, hitherto. The legislative change which, in essence,

bars a decree in "any suit" arising out of money lending

transaction, is of wide amplitude, in comparision to the bar

contained in Section 10 of the Money-Lenders Act, 1946,

which was restricted to a suit to which the provisions of the

said Act applied.

23. Further amplifying the submission, Mr. Momaya would

urge that the judgments of this Court in Parekh Aluminex

Limited Vs. M/s. Ashok commercial Enterprises & Anr 4, Mour

Marbles Industries Pvt Ltd Vs. Motilal Laxmichand Salech,

HUF, Proprietor of M/s. Mala Investments through its Karta

Motilal Laxmichand Salecha and Others5, and Mahesh P

Raheja Vs. Base Industries Group6, which have not adverted

to the difference in the legislative mandate contained in

Section 13 of the Money-Lending Act, 2014, can therefore be

said to have been rendered sub silentio. To buttress this

submission, Mr. Momaya placed a strong reliance on the

judgment of the Supreme Court in the case of Municipal

4 (2014)SCC Online Bom 2304 5 (2018) SCC Online Bom 1387 6 2018 SCC OnLine Bom 21322

SJ-36-21+COMSS+293-20.DOC

Corporation of Delhi Vs. Gurnam Kaur7 wherein the concept

of sub silentio was expounded.

24. To appreciate the aforesaid submission, it may be

advantageous to extract text of sub Section (1) of Section 10 of

Money-Lenders Act, 1946 and sub Section (1) of Section 13 of

Money- Lending Act, 2014.

10. Stay of suits by money- 13. Suits by money-lenders lenders not holding licence- not holding licence.- [(1)] No Court shall pass a (1) No Court shall pass a decree in favour of a money- decree in favour of a money- lender in any suit to which this lender in any suit unless the Act applies [including such suit court is satisfied that at the pending in the Court before the time when the loan or any commencement of the Bombay part thereof, to which the Money-lenders (Amendment) suit relates was lent, the Act, 1975] (Mah. LXXVI of 1975) money-lender held a valid unless the Court is satisfied licence, it shall dismiss the that at the time when the loan suit.

or any part thereof, to which the suit relates was advanced, the money-lender held a valid licence, and if the court is satisfied that the money-lender did not hold a valid licence, it shall dismiss the suit.]

25. Mr. Momaya laid emphasis on the fact that the words

"to which this Act applies" do not find mention in Section

13(1) of the Money-Lending Act, 2014. This omission,

according to Mr. Momaya, can not be said to be unintended

and inconsequential.

26. Mr. Shah, the learned Counsel for the plaintiff would

urge that the aforesaid submission does not carry any

7(1989) 1 SCC 101

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conviction. If a transaction does not fall within the ambit of

'loan' as defined in Section 2(13) of the Money-Lending Act,

2014, the bar under Section 13(1) of the Act would not

operate. Resultantly, the omission of the words "to which this

Act applies" does not make any significant change in the

legislative mandate, urged Mr. Shah.

27. I find the submission of Mr. Shah well founded. In the

case at hand, indisputably, the loan was advanced against

the Bill of Exchange drawn by the defendant. When an

advance is assailed on the ground that it suffers from the vice

of illegal money lending, the primary inquiry would be

whether the advance falls within the definition of 'loan' under

Section 2(13) of the Act. If the advance in question is excepted

by any of the exclusionary Clauses (a) to (m) of the said

Section 2(13), it would not amount to a 'loan' within the

meaning of the Act, and, resultantly, the interdict contained

in Section 13 (1) of the Act will have no play.

28. In the instant case, the advance clearly falls within the

exclusionary Clause (j) of Section 2(13), which reads as under.

"(13) "loan" means an advance at interest whether of money or in kind but does not include,-

..........

(j) an advance of any sum exeeding rupees [three lakhs] made on the

SJ-36-21+COMSS+293-20.DOC

basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881 (26 of 1881), other than a promissory note;"

29. In the aforesaid view of the matter, I am not inclined to

delve into the aspect of the consequences which emanate from

the omission of the words "to which this Act applies" in

Section 13 (1) of the Money-Lending Act, 2014. Even

otherwise, on a plain reading of sub Section 13(1) of the

Money-Lending Act, 2014, an inference that the application of

the said Section is restricted to the 'loan' defined under

Section 2 (13) becomes inescapable.

30. On the merits of the claim, as indicated above, the

advance of loan is evidenced not only by the entries in the

extract of account but also by the Bill of Exchange drawn by

the defendant. The Bill of Exchange contains an endorsement

as to the mode of receipt of the credit thereunder.

31. As noted above there is no dispute about the issue of

the subject cheques towards the discharge of the liability and

the dishonour of those cheques on presentment. A Summary

Suit based on dishonoured cheques stands on a higher

pedestal. In addition to the proof of underlying consideration,

evidenced by the documents and material on record, in a

given case, the plaintiff can bank upon the presumptions

SJ-36-21+COMSS+293-20.DOC

contained in Section 118 of the Negotiable Instruments Act,

1881 and Section 114 illustration (c) of the Indian Evidence

Act, 1872.

32. A slightly distinct position of a Summary Suit based on

a dishonoured cheque has been expounded by a Division

Bench of this Court in the case of Rajesh Laxmichand Udeshi

@ Bhatia Vs. Pravin Hiralal Shah 8 wherein the Court adverted

to the effect of the statutory presumptions under the

Negotiable Instruments Act, 1881, while considering the

prayer for leave to defend the suit based on a negotiable

instrument.

33. The observations of the Division Bench in paragraph 14

and 15 of the said judgment are material and, hence,

extracted below.-

14] When a summary suit instituted is based on a cheque which is dishonoured, effect of Sections 138 and 139 of Negotiable Instruments Act raising statutory presumption that the cheque was issued in discharge of a liability, is a relevant consideration to be kept in mind. The said Sections cast a burden upon the defendant to rebut the presumption. Summary suits instituted on cheques which are dishonoured will, therefore, stand on a higher footing than summary suits instituted on the basis of other documents. In such cases, the Court will have to take into consideration the statutory presumption which is raised when the cheques are dishonoured.

The object behind providing a statutory presumption under the Negotiable Instruments Act has to be kept in mind while judging the credibility of a defence raised by the defendant in summary suit. Thus, the test of more than "shadowy" and less than "probable" as adverted to by the Apex Court cannot apply in cases where the law requires a person to explain certain state of affairs. The judgments which are relied upon by the learned

8(2013) 2 AIR Bom R 1146

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counsel do not consider the effect of the statutory presumptions raised under the Negotiable Instruments Act when a cheque is dishonoured. In our opinion, when a cheque is dishonoured, the Court is enjoined with the duty to scrutinize the defence put up by the defendant with a much higher degree of care and circumspection. Such summary suits cannot be treated as on par with the cases instituted on contracts or invoices etc. where such statutory presumptions do not operate.

15] The legislative intent behind enactment of Sections 138 and 139 of the Negotiable Instruments Act is to prevent abuse of the banking system. Thus, one who issues a cheque extends a solemn promise to pay. Based on this promise and action, the recipients arrange their affairs and quite often enter into further transactions. Unless extra ordinary circumstances are made out, one who issues cheque is deemed to have undertaken to pay. Negotiable Instruments Act enforces the promise strictly by raising statutory presumption and treating it as an offence. This provision elevates a cheque to a higher status than the other instruments, such as written contract etc. to which no such statutory presumption is attached. What needs to be emphasized is that presumption in respect of a dishonoured cheque places a higher burden on the defendant to elucidate the defence than the burden which is cast on a defendant where the suit is filed on the basis of ordinary instruments. In the cases based on dishonour of cheques, the defendant must satisfy the conscience of the Court and cannot take shelter behind the rules formulated primarily in respect of suits based on ordinary instruments. The Court while exercising the discretion to grant leave or otherwise to the defendant in such cases cannot be oblivious of the legislative intent to place the promise made through a cheque on a higher pedestal than the promise made through an ordinary instrument. This is not to state that moment a Summary Suit is lodged based on a dishonoured cheque, it must be decreed without anything more. What needs to be emphasised is that the fact that there is a statutory presumption attached to the dishonoured cheque will constitute an important ingredient while considering the question whether leave to defend should be granted in cases of dishonoured cheques and the Court must scrutinise the defence strictly. The object of the summary procedure is ultimately to see that the defendant does not needlessly prolong the litigation by creating untenable, frivolous and casual defences so as to deprive the plaintiff of the monies due to him.

34. In the totality of the circumstances, none of the

defences sought to be urged on behalf of the defendant can be

said to be either substantial or fair and reasonable warranting

leave to defend the suit. In view of the clear and explicit

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admissions of the liability and the fact that principal defence

of the transaction being one of illegal money-lending not being

borne out by the record, the defendant is not entitled to leave

to defend the suit.

35. Even the endeavor of Mr. Momaya to seek leave to

defend by canvassing a submission that plaintiff has charged

interest at an exorbitant and unconscionable rate does not

advance the cause of the defendant. The plaintiff is seeking

pre-suit, pendent lite, and future interest at the agreed rate of

12% per annum. In a business transaction in a commercial

city like Mumbai, interest at the rate of 12% per annum can

not be said to be exorbitant and unreasonable. Moreover, in

the case at hand, there is an unequivocal undertaking to pay

interest. In any event the award of interest on the amount

covered by dishonoured cheques would be governed by the

provisions contained in Section 80 of the Negotiable

Instruments Act, 1881, which stipulates rate of 18 % per

annum. Therefore, I am not persuaded to accede to the

submission on behalf of the defendant to grant leave to defend

the suit qua the interest component.

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36. So far as post- suit future interest, in the entire setting

of the matter, award of further interest at the rate of 9% per

annum would be just and reasonable.

37. For the foregoing reasons, the Summons for judgment is

required to be allowed.

38. Hence, the following order.

-:ORDER:-

(i) The Summons for Judgment stands allowed.

(ii) The defendant do pay to the plaintiff a sum of

Rs.3,39,54,794.52/-(Rupees Three Crore Thirty

Nine Lakhs Fifty Four Thousand Seven Hudred

Ninety Four and Fifty Two Paisa Only) along

with further interest at the rate of 9% per

annum on the principal amount of

Rs.2,50,00,000/- from the date of the

institution of the suit till the date of the

payment and/or realisation.

(iii) The defendant do pay costs quantified at Rs.5

Lakhs to the plaintiff.

(iv) The suit stands decreed in aforesaid terms.

(v) Decree be drawn up accordingly.

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(vi) In view of the disposal of the suit, Interim

Application (L) No.29792 of 2022 also stands

disposed.

[N. J. JAMADAR, J.]