Bombay High Court
Rithika Enterprises And Anr vs Garment Packers And 2 Ors on 31 January, 2023
Bench: N. J. Jamadar
SWAROOP Digitally signed by
SWAROOP SHARAD
SHARAD PHADKE
Date: 2023.01.31
PHADKE 17:36:49 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
SUMMONS FOR JUDGMENT NO. 48 OF 2021
IN
COMM SUMMARY SUIT NO. 225 OF 2020
Rithika Enterprises and anr. ...Applicants
In the matter between
Rithika Enterprises and anr. ...Plaintiffs
Versus
Garment Packers and ors. ...Defendants
WITH
INTERIM APPLICATION (L) NO. 26655 OF 2022
Mr. Vivek Kantawala, a/w Amey Patil, i/b M/s. Vivek Kantawala & Co., for
the Applicants/Plaintiffs.
Mr. Rohan Cama, a/w Ms. Anandpara, i/b Mr. Girish Kedia, for Defendant
Nos.1 and 3.
Mr. Vipul Shukla, for Defendant No.2.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 18th OCTOBER, 2022
PRONOUNCED ON: 31 JANUARY, 2023
ORDER:-
1. This commercial division summary Suit is instituted for recovery of a
sum of Rs.2,15,25,000/- alongwith future interest on the principal amount of
Rs.1,50,00,000/- on the strength of dishonored cheque.
2. The material averments in the plaint can be summarised as under:
(a) Plaintiff No.2 is the proprietor of Rithika Enterprises. Defendant
No.3 is the Proprietor of defendant No.1 Garment Packers ("Garment").
Defendant No.2 Tejora Technologies Limited ("Tejora") is a Company
registered under the Companies Act, 1956.
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(b) Defendant No.3 developed a friendly relationship with plaintiff
No.2 through the latter's daughter. At the request of defendant No.3 the
plaintiff had advanced money to defendant No.3. In the year 2016, defendant
No.3 again requested the plaintiffs to advance money. Thus, at the request of
defendant No.3, the plaintiffs remitted a sum of Rs.1 Crore on 5 th January, 2016
to the account of defendant No.1 - Garment. A further sum of Rs.50,00,000/-
also came to be credited to the account of Garment on 24 th June, 2016.
Defendant No.3 had assured to repay the amount alongwith interest.
(c) Initially defendant No.3 did pay interest. Later on, defendant
No.3 committed default in payment of interest since the month of July, 2017.
Upon relentless persuasion by the plaintiff, defendant No.3 issued a cheque for
an amount of Rs.1,18,00,000/- drawn on Shamrao Vitthalrao Co-operative
Bank, payable on 28th January, 2019, towards the repayment of principal
amount. However, upon presentment, the cheque was returned unencashed
with the remarks 'account closed'. Thereupon the plaintiffs addressed a legal
notice dated 3 January 2020 to the defendants calling upon them to pay
amount covered by the cheque. Vide reply dated 16 th January, 2020, defendant
No.3 raised a false defence by concocting a story that he was a mere conduit
and all the monies paid by the plaintiffs to defendant No.3 were transferred to
the account of defendant No.2 - Tejora, for whom the money was actually
intended to be transferred. Tejora, in turn, contended that it had never
received the said amount of Rs.1,50,00,000/-, and that defendant No.3 had
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resigned from Tejora in the month of September, 2017 and, thus, Tejora had no
concern whatsoever with the transaction in question.
(d) The plaintiffs further assert that defendant No.3 has not only
paid interest on the amount advanced but has also admitted in the
correspondence exchanged between the parties that the amount was indeed
transferred to the account of defendant No.1. Hence, this suit for recovery of
the outstanding amount alongwith accrued interest thereon.
3. In response to the service of writ of summons, the defendants entered
appearance. Thereupon the plaintiffs took out the Summons for Judgment.
4. Defendant Nos.1 and 3 filed an affidavit-in-reply seeking unconditional
leave to defend the suit. The substance of the resistance put-forth by
defendant No.3 is that he was working as an Executive Director of Tejora, of
which Mr. Nitin Shenoy was the Chief Managing Director. There was
proximity between Mr. Nitin Shenoy and the daughter of plaintiff No.2. Both
of them used to frequently visit Dubai and stay thereat. As the defendant No.3
reposed full faith and trust in Mr. Nitin Shenoy, in the month of June 2015, he
had shared the details of the Bank accounts of Garment. On 11 th June, 2015, a
sum of Rs.45,00,000/- came to be remitted to the account of Garment and, on
the very day, at the instructions of Mr. Nitin Shenoy and the daughter of the
plaintiff No.2, the said amount was transferred to the account of Tejora.
Though surprised at the modus operandi defendant No.3 did not object as he
had a very thick relationship with Mr. Nitin Shenoy. As a part of the said
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modus operandi, according to defendant No.3, in the month of January, 2016, a
sum of Rs.1 Crore came to be remitted to the account of Garment and a further
sum of Rs.50,00,000/- in the month of June, 2016 and those amounts were
instantaneously transferred to the account of Tejora. The payment of various
amounts by defendant No.3 to the plaintiff, according to defendant No.3, was
also in pursuance of said exercise of routing the money at the behest of Mr.
Nitin Shenoy and the daughter of plaintiff No.2.
5. Defendant No.3 further contends that on 9th April, 2017, in an
unfortunate incident at Dubai, Nitin Shenoy died by drowning in ocean water.
After the death of Nitin Shenoy, his wife started to manage the affairs of
Tejora. Defendant No.3 made an attempt to persuade the wife of late Nitin
Shenoy to reconcile the accounts and pay the balance amount. In the
meanwhile, late Nitin's wife learnt about the proximity of the daughter of
plaintiff No.2 with late Nitin Shenoy and defendant No.3 was made to resign
from Tejora. In substance, defendant No.3 claims that he had never availed
any loan from the plaintiffs and he had acted as a conduit for late Nitin. He
had not known plaintiff No.2 and had only met the daughter of plaintiff No.2,
who has acknowledged, in a series of chats, that the real transaction was
between her and late Nitin Shenoy.
6. An Affidavit in Rejoinder is filed by the Plaintiffs controverting the
contentions in the Affidavit in Reply.
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7. In the light of the aforesaid pleadings, I have heard Mr. Kantawalla,
learned Counsel for the Plaintiffs, and Mr. Rohaan Cama, learned Counsel for
the Defendant Nos.1 and 3 at some length. The learned Counsel took the
Court through the relevant pleadings and the documents tendered for the
perusal of the Court.
8. Mr. Kantawalla submitted that the present is a open and shut case of
dishonour of the cheque issued towards repayment of the loan. The defence
that the real transaction was between Mr. Nitin Shenoy and the daughter of
the complainant is a figment of imagination, to evade the liability, which is
otherwise substantiated by documents of unimpeachable character. Mr.
Kantawalla would urge that there is no dispute over the fact that a sum of
Rs.1,50,00,000/- was transferred to the account of Defendant No.3 by the
Plaintiffs through the banking channel. Issue and presentment of the subject
cheque and its dishonour are also not in contest.
9. An endeavour on the part of the Defendants to demonstrate that the
Plaintiffs have abused the custody of the signed blank cheque, according to Mr.
Kantawalla, in the light of the development of law, does not merit countenance.
Mr. Kantawalla placed a strong reliance on the judgment of the Supreme Court
in the case of Oriental Bank of Commerce V/s. Prabodh Kumar Tewari 1
wherein after tracing the development of law on the aspect of the misuse of
the custody of the signed blank cheque; a defence which is often raised, it was
1 2022 SCC Online SC 1089
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enunciated that even if the details in the cheques have not been filled up by the
drawer, but by another person, that was not relevant to the defence whether
cheque was issued towards payment of a debt or in discharge of a liability.
10. Mr. Kantawalla further submitted that the fact that the post receipt of
credit from the Plaintiffs, the amount was transferred to the account of the
Defendant No.2 from the account of Defendant No.3, is of no consequence as,
at best, that would be a matter between the Defendant Nos.1 and 3 and
Defendant No.2 inter se. On the strength of the subsequent transfer of the
amount, according to Mr. Kantawalla, an inference that the Defendant No.3
was a mere conduit cannot be drawn.
11. Banking upon the dishonoured cheque and failure to pay the amount
covered by the said cheque, despite demand notice, the service of which is
indubitable, Mr. Kantawalla urged that a decree must follow.
12. Mr. Cama stoutly submitted that in the facts of the case at hand, the
Defendants deserve an unconditional leave to defend the suit as the defence
that the account of Defendant No.3 was used for routing money by Mr. Nitin
Shenoy and the daughter of the complainant, is substantiated by
contemporaneous entries in the account extracts. Drawing heavily upon the
transfer of the amount to the account of Tejora, no sooner the amounts were
credited to the account of Garment from the Plaintiffs, Mr. Cama would urge
that no other inference than that of the Garment's account having been used as
a conduit, can be drawn. In the circumstances, according to Mr Cama,
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Defendant Nos.1 and 3 can be said to have succeeded in demonstrating defence
which is fair and reasonable, if not substantial one.
13. In addition, Mr Cama laid emphasis on the conversation between the
daughter of the Plaintiff No.2 and Defendant No.1, the transcript of which is
annexed to the Affidavit in Reply. Mr. Cama submitted that the tenor of the
transcript of conversation would unmistakably indicate the real nature of the
transaction and the parties thereto.
14. Mr. Cama submitted that a triable issue as to the nature of the
transaction and the liability of Defendant Nos.1 and 3 has been raised by
Defendant Nos.1 and 3. Thus, the test to grant unconditional leave can be said
to have been satisfied. Therefore, the Defendants deserve an unconditional
leave to defend the Suit. Mr. Cama placed reliance on the judgment of the
Supreme Court in the case of Raj Duggal V/s. Ramesh Kumar Bansal2
wherein the test for grant or refusal of the leave to defned the suit was
succinctly formulated.
15. Mr. Kantawalla joined the issue by canvassing a submission that the
defence sought to be raised on behalf of the Defendant Nos.1 and 3 borders on
character assassination; which can never justify grant of leave to defend. As a
second limb, it was submitted that in the alleged conversation, which is sought
to be banked upon by the Defendant Nos.1 and 3, the Plaintiffs are nowhere in
the frame, and, therefore, by pressing into service an imaginary defence based
2 (1991) Supp (1) SCC 191
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on some unauthenticated conversation, Defendant Nos.1 and 3 do not deserve
leave to defend.
16. I have given anxious consideration to the rival submissions. Before
adverting to deal with the aforesaid submissions, it may be apposite to note that
the credit of the amount of Rs.1,50,00,000/- in the account of Garment by the
Plaintiffs is incontestible. Secondly, there is not much controversy over the
fact that, over a period of time, a sum of Rs.38 Lakhs came to be repaid to the
Plaintiffs from the said account. Thirdly, the fact that the subject cheque was
drawn on an account maintained by Defendant No.3 and, upon presentment,
the said cheque was dishonoured with the remarks 'account closed' is also
indisputable.
17. Defendant Nos.1 and 3 contend that the aforesaid transactions including
the return of the sum of Rs.38 Lakhs, were at the behest of Nitin Shenoy and
the money did not stay with Defendant Nos.1 and 3, for even a short period, as
Garment was a mere conduit. Whether this defence justifies the grant of leave
to defend is the pivotal question.
18. The tests to be applied while considering a prayer for grant of leave to
defend under Order XXXVII of the Code of Civil Procedure, 1908, are well
settled. In cases where the Court finds that the Defendant has raised a
substantial or reasonable and fair defence, grant of an unconditional is the
norm. Where the Defendant succeeds in demonstrating that the defence raises
a triable issue, then also the Defendant is entitled to an unconditional leave.
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Conversely, in a case where the defence appears to be sham and moon shine,
the Court would be justified in declining to grant leave and pass a judgment.
Where the Court upon consideration of the material comes to the conclusion
that the defence, though raises a triable issue, yet the Court is not satisfied
about the bonafides of the defence, the Court may grant leave upon the
conditions of making a deposit and/or stipulate the conditions for trial.
19. The course to be adopted by the Court, thus, hinges upon the nature
and quality of the defence sought to be put forth by the Defendant. The test
for granting or refusal to grant leave was succinctly postulated by the Supreme
Court in the case of Raj Duggal (supra) in the following words :
"3. Leave is declined where the Court is of the opinion that the grant of
leave would merely enable the defendant to prolong the litigation by
raising untenable and frivolous defences. The test is to see whether the
defence raises a real issue and not a sham one, in the sense that if the
facts alleged by the Defendant are established there would be a good or
even a plausible defence on those facts. If the Court is satisfied about
that leave must be given. If there is a triable issue in the sense that
there is a fair dispute to be tried as to the meaning of a document on
which the claim is based or uncertainty as to the amount actually due or
where the alleged facts are of such a nature as to entitle the defendant
to interrogate the Plaintiff or to cross-examine his witnesses leave
should not be denied. Where also, the Defendant shows that even on a
fair probability he was a bonafide defence, he ought to have leave.
Summary judgments under Order XXXVII should be granted where
serious conflict as to matter of fact or where any difficulty on issues as
to law arises. The Court should not reject the defence of the defendant
merely because of its inherent implausibility of its inconsistency."
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20. It would be advantageous to refer to a recent judgment of the Supreme
Court in the case of B. L. Kashyap and Sons Limited vs. JMS Steels and
Power Corporation and another3, wherein after considering the previous
pronouncements including the judgments of the Supreme Court in the cases of
Mechalec Engineers & Manufacturers vs. Basic Equipment Corporation4 and
IDBI Trusteeship Services Ltd vs. Hubtown Ltd.5, the Supreme Court
enunciated the governing principles which determine the grant of leave to
defend the suit in the following words :
"33. It is at once clear that even though in the case of
IDBI Trusteeship, this Court has observed that the
principles stated in paragraph 8 of Mechelec Engineers'
case shall stand superseded in the wake of amendment
of Rule 3 of Order XXXVII but, on the core theme, the
principles remain the same that grant of leave to defend
(with or without conditions) is the ordinary rule; and
denial of leave to defend is an exception. Putting it in
other words, generally, the prayer for leave to defend is
to be denied in such cases where the defendant has
practically no defence and is unable to give out even a
semblance of triable issues before the Court.
33.1 As noticed, if the defendant satisfies the Court
that he has substantial defence, i.e., a defence which is
likely to succeed, he is entitled to unconditional leave to
defend. In the second eventuality, where the defendant
3 (2022) 3 Supreme Court Cases 294.
4 (1976) 4 SCC 687.
5 (2017) 1 SCC 568.
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raises triable issues indicating a fair or bonafide or
reasonable defence, albeit not a positively good
defence, he would be ordinarily entitled to
unconditional leave to defend. In the third eventuality,
where the defendant raises triable issues, but it remains
doubtful if the defendant is raising the same in good
faith or about genuineness of the issues, the Trial Court
is expected to balance the requirements of expeditious
disposal of commercial causes on one hand and of not
shutting out triable issues by unduly severe orders on
the other. Therefore, the Trial Court may impose
conditions both as to time or mode of trial as well as
payment into the Court or furnishing security. In the
fourth eventuality, where the proposed defence appear
to be plausible but improbable, heightened conditions
may be imposed as to the time or mode of trial as also
of payment into the Court or furnishing security or
both, which may extend to the entire principal sum
together with just and requisite interest.
33.2 Thus, it could be seen that in the case of
substantial defence, the defendant is entitled to
unconditional leave; and even in the case of a triable
issue on a fair and reasonable defence, the defendant is
ordinarily entitled to unconditional leave to defend. In
case of doubts about the intent of the defendant or
genuineness of the triable issues as also the probability
of defence, the leave could yet be granted but while
imposing conditions as to the time or mode of trial or
payment or furnishing security. Thus, even in such
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cases of doubts or reservations, denial of leave to
defend is not the rule; but appropriate conditions may
be imposed while granting the leave. It is only in the
case where the defendant is found to be having no
substantial defence and/or raising no genuine triable
issues coupled with the Court's view that the defence is
frivolous or vexatious that the leave to defend is to be
refused and the plaintiff is entitled to judgment
forthwith. Of course, in the case where any part of the
amount claimed by the plaintiff is admitted by the
defendant, leave to defend is not to be granted unless
the amount so admitted is deposited by the defendant
in the Court.
33.3 Therefore, while dealing with an application
seeking leave to defend, it would not be a correct
approach to proceed as if denying the leave is the rule
or that the leave to defend is to be granted only in
exceptional cases or only in cases where the defence
would appear to be a meritorious one. Even in the case
of raising of triable issues, with the defendant indicating
his having a fair or reasonable defence, he is ordinarily
entitled to unconditional leave to defend unless there be
any strong reason to deny the leave. It gets perforce
reiterated that even if there remains a reasonable doubt
about the probability of defence, sterner or higher
conditions as stated above could be imposed while
granting leave but, denying the leave would be
ordinarily countenanced only in such cases where the
defendant fails to show any genuine triable issue and
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the Court finds the defence to be frivolous or
vexatious." (emphasis supplied)
21. On the aforesaid touchstone, reverting to the facts of the case, it has to
be seen whether the Defendants have succeeded in raising such a defence
which warrants leave to defend. The onus on the Defendants in the face of the
dishonoured cheque, which forms the foundation of the summary suit, appears
to be relatively heavy. A case based on a dishonoured cheque stands on a
different footing than a case based on other document. With the dishonour of
the cheque, number of presumptions came to the fore. A bald defence that the
cheque was not drawn in discharge of legally enforceable debt or liability may
not sustain grant of leave to defend. The defendant who seeks leave to defend
the summary suit based on dishonoured cheque has to satisfy the conscious of
the Court that there is an element of uncertainty about the enforceability of the
debt covered by the dishonoured cheque.
22. A useful reference in this context can be made to a judgment of the
Supreme Court in the case of V.K.Enterprises and Anr. V/s. Shiva Steels6
wherein the Supreme Court expounded the considerations which weigh with
the Court while granting leave to defend in a case based on a dishonoured
cheque. The observations in paragraphs 10 and 11 are material and hence
extracted below :
6 (2010) 9 SCC 256
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"10. Order 37 CPC has been included in the Code of Civil Procedure
in order to allow a person, who has a clear and undisputed claim in
respect of any monetary dues, to recover the dues quickly by a
summary procedure instead of taking the long route of a regular suit.
The Courts have consistently held that if the affidavit filed by the
defendant discloses a triable issue that is at least plausible, leave
should be granted, but when the defence raised appears to be
moonshine and sham, unconditional leave to defend cannot be
granted.
11. What is required to be examined for grant of leave is whether
the defence taken in the application under Order 37 Rule 3 CPC
makes out a case, which if established, would be a plausible defence
in a regular suit. In matters relating to dishonour of cheques, the
aforesaid principle becomes more relevant as the cheques are issued
normally for liquidation of dues which are admitted. In the instant
case, the defence would have been plausible had it not been for the
fact that the allegations relating to the interpolation of the cheque is
without substance and the ledger accounts relating to the dues,
clearly demonstrated that such dues had been settled between the
parties. Moreover, the issuance of the cheque had never been
disputed on behalf of the Petitioner whose case was that the same
had been given on account of security and not for presentation, but
an attempt had been made to misuse the same by dishonest means."
(emphasis supplied)
23. Following the aforesaid judgment, a Division Bench of this Court in the
case of Rajesh Laxmichand Udeshi @ Bhatia V/s. Pravin Hiralal Shah 7
postulated that a summary suit based on a dishonoured cheque stands on a
higher footing than a summary suit instituted on the basis of other document.
In the former, the court is enjoined to consider the effect of the statutory
7 (2013) 2 AIR Bom R 1146
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presumptions which operate when the cheque is dishonoured. The
observations in paragraphs 14 and 14 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 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
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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
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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.
(emphasis supplied)
24. Keeping in view the aforesaid position in law, the quality of defence
sought to be raised on behalf of Defendant Nos.1 and 3 deserves to be
appreciated. Is the defence such that it satisfies the conscious of the Court that
the defence so taken raises a triable issue and has the potential to dislodge the
statutory presumptions ?
25. As noted above, Defendant Nos.1 and 3 seek to draw support from the
entries in the extracts of the account of Defendant No.3 and Defendant No.1 -
Garment, to bolster up a case that the money was merely routed through these
accounts. The extract of account of Defendant No.1 Garment (Exhibit 2) to the
Affidavit in Reply, indicates that a sum of Rs.45 Lakhs was remitted to the
account of Garment - Defendant No.1 from the Plaintiff No.2 and two other
entities namely Dharma Enterprises and Vedant Agarwal on 11 June, 2015. On
the very day, the said amount came to be transferred to the account of
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Defendant No.3 - Hemant. Later on, the very same amount was repaid to
Plaintiff No.2 on 22 July 2015 and Vedant and Dharma on 22 June, 2015.
26. The same course, according to Defendant Nos.1 and 3, was adopted in
respect of the transactions in question. The extract of account (Exhibit B) of
Garment indicates that a sum of Rs.1 Crore was credited to the account of the
Defendant No.1 by Plaintiff No.1 on 6 January 2016. On the very day, the said
amount of Rs.1 Crore was transferred to the account of Hemant, Defendant
No.3. Instantaneously, the said amount came to be transferred to the account
of Tejora - Defendant No.2. Thereafter, another sum of Rs.50 Lakhs was
credited by Plaintiff No.1 to the account of Defendant No.1 on 24 June, 2016.
Instantaneously, the said amount came to be transferred to the account of
Hemant - Defendant No.3. Hemant, in turn, transferred the said amount of
Rs.1 Crore to Tejora - Defendant No.2 on the very day.
27. In this fashion, an amount of Rs.1,50,00,000/- came to be transferred to
the account of Tejora - Defendant No.2. Had this been the only material, it
could have been urged that the transfer of the amount by Defendant Nos.1 and
3 to the account of Tejora was an inter se affair between the Defendants and
that would not affect the enforceability of the debt. However, the attendant
circumstances, cannot be lost sigh of.
28. First and foremost, the instantaneous transfer of the amount received
from the Plaintiffs to the account of Tejora in respect of both the tranches of
advances (Rs.1 Crore & Rs. 50 Lakhs) cannot be wished away as a matter of
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mere co-incidence. This modus operandi lends prima facie credence to the
defence. Secondly, the transcript of conversation (Exhibit 11 to the Affidavit in
Reply) between the daughter of the Plaintiff and the Defendant No.3, throws
light on the nature of the relationship amongst the character involved in the
matter.
29. Undoubtedly, the conversation is interspersed with the personal and
emotive details. Nonetheless, without touching upon those parts, a legitimate
inference about the nature of the transaction and the relationship between the
parties can be drawn. Repeated assertions and imploration of Hemant -
Defendant No.3 that the daughter of the Plaintiff was fully aware of the real
nature of the transaction and he was not at all liable to repay the amount and
was being made a scapegoat, deserves to be taken note of. It is also pertinent
to note that this stand of the Defendant No.3 does not seem to have been
controverted in unequivocal terms. In contrast, Defendant No.3 was called
upon to reason with the wife of Nitin Shenoy to refund the amount. Lastly, if
the conversation is considered in its entirety, the submission of Mr. Kantawalla
that the Plaintiff No.2 was not at all involved does not advance the cause of the
Plaintiffs as it indicates that the Defendant No.3 was insisting to have a
meeting with the Plaintiff No.2 and disclose the true state of affairs. This gives
heft to the submission on behalf of Defendant Nos.1 and 3 that there was no
inter - partes transaction between Plaintiff No2 and Defendant No.3. It is of
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relevance to note that it is the Plaintiff's case that Defendant No.3 forged
friendly relations with Plaintiff No.2 through his daughter.
30. Mr. Cama endeavoured to impress upon the Court that the fact that the
account was closed in the year 2017 itself, and subject cheque came to be
presented for encashment in the year 2019, dents the Plaintiffs' claim. In my
view, the said factor itself may not be of decisive significance. However, in the
totality of the circumstances, the said aspect may also deserve consideration.
31. The conspectus of aforesaid consideration is that Defendant Nos.1 and
3 have succeeded in bringing material on record to show that they have a
reasonable and fair defence. The material placed on record appears to be of
such a quality as to bear weight of dispelling presumptions, if the matter goes
for trial. I am, therefore, persuaded to hold that the Defendants deserve an
unconditional leave to defend the Suit.
32. Hence, the following order :
ORDER
(i) The Defendants are granted unconditional leave to defend the Suit.
(ii) The Defendants shall file Written Statement within a period of 30 days
from today.
(iii) The Summons for Judgment stands dismissed.
(iv) In view of the dismissal of the Summons for Judgment, Interim
Application (L) No.26655 of 2022, also stands disposed.
[N. J. JAMADAR, J.]
ssp 20/20
