[Cites 0, Cited by 0]
Bombay High Court
Dayaram Vallaram Choudhary Prop. M/S. ... vs M/S. Nuwave Technology Pvt. Ltd., ... on 4 December, 2025
2025:BHC-AS:53229
Digitally 7.IA.1556.2023 C.doc
signed by
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date: IN THE HIGH COURT OF JUDICATURE AT BOMBAY
2025.12.05
13:51:57 CIVIL APPELLATE JURISDICTION
+0530
INTERIM APPLICATION NO. 1556 OF 2023
WITH
FIRST APPEAL NO. 846 OF 2023
M/s. Nuwave Technology Pvt Ltd
(Now Strike Off) & Anr. ...Applicants/Appellants
Versus
Dayaram Vallaram Choudhary
Prop M/s. Rameshwar Metal Corporation ...Respondent
WITH
INTERIM APPLICATION NO. 10603 OF 2024
WITH
FIRST APPEAL NO. 846 OF 2023
Dayaram Vallaram Choudhary
Prop M/s. Rameshwar Metal Corporation ...Applicant
IN THE MATTER BETWEEN
M/s. Nuwave Technology Pvt Ltd
(Now Strike Off) & Anr. ...Appellants
Versus
Dayaram Vallaram Choudhary
Prop M/s. Rameshwar Metal Corporation ...Respondent
****
Mr Akshay Kolse-Patil a/w. Adv. Riya Jude i/b. Adv. Monil Mandavia for the
Appellant / Applicant in IA/1556/2023
Mr Arun Rajput for the for Respondent in FA and Applicant IA/10603/2024
****
CORAM : M. M. SATHAYE, J.
DATED : 4th DECEMBER 2025
7.IA.1556.2023 C.doc
P.C.:
1. Heard learned Counsel for the parties. Perused the records.
2. IA/1556/2023 is filed by the Appellants/Defendants seeking stay to
the impugned judgment and decree dated 07/10/2022 passed by the City
Civil Court, Mumbai in Summary Suit No. 4612 of 2010 (old H.C. Sum. Suit
No. 2787 of 2010).
3. IA/10603/2024 is filed by the Respondent in appeal/successful
Plaintiff, seeking withdrawal of the principal amount of Rs.28,78,941/-
deposited by the Appellants in the Court.
4. The Appellants are Defendants in the said Suit, which is filed by the
Respondent for recovery of Rs.42,59,241.50 with interest. It is the case of
the Respondent that Respondent is a supplier and dealer of metals, iron and
steel materials the Appellant No. 1-Company and the Appellant No. 2 being
its Director used to purchase material, time to time from the Respondent.
That certain amount of S. S. sheet, pipes, rods, patta, circles (hereinafter
referred to as 'material') was supplied by the Respondents vide four tax-
invoices and delivery challans, which were accepted by the Appellants
without raising any dispute. That the amount of Rs.28,78,941/- was due and
payable on account of supply of material. That by letter dated 10/08/2009
Appellants acknowledged the liability and two post dated cheques were
issued by the Appellant No. 2, which on presentation were dishonored. That
the Respondent issued demand notice, which was not complied and
therefore the said suit came to be filed.
5. Appellants filed written statement contending inter alia that the letter
dated 10/08/2009 purportedly showing liability is tampered and forged
7.IA.1556.2023 C.doc
document. Placing of order for supply of material is denied. Receipt of
material is denied. It is contented that there was no transaction at all. It is
contented that the cheque book carrying the cheques in question was lost,
which was reported to the bank and request was made for stopping the
payment. The case of misuse of two cheques is pleaded.
6. The Trial Court, after hearing the parties and on appreciation of
evidence has decreed the suit partly, directing the Appellants to pay
Rs.28,78,941/- with interest @ 6% per annum from the date of filing of the
suit till realization.
7. Record shows that under the order dated 09/01/2024 passed in
IA/1556/2023, the Appellants were permitted to deposit principal amount
and the Court recorded that it is expected from the Executing Court not to
take any coercive action.
8. Learned Counsel for the Appellants submitted that Appellant No. 2
being the Director of the company cannot be held liable for liability of the
Company i.e. Appellant No. 1. He contended that if signatures on the
delivery challans are compared with the signatures on the cheques, then
they can be seen apparently different. Inviting the Court's attention to the
observation of the Trial Court in Para 24, it is pointed out that even the Trial
Court has found out some truth in the contention of the Appellants that
there is certain change in handwriting in respect of the cheque amount. He
submitted that separate Application being IA/6624/2024 is filed by the
Appellants seeking appointment of handwriting expert, which is pending. On
these grounds inter alia, he opposed the prayer for withdrawal
9. Learned Counsel for the Respondent, on the other hand, submitted
7.IA.1556.2023 C.doc
that coercive steps are already stayed by this Court without deposit of the
entire decretal amount, despite the fact that it is a money decree. He
submitted that the case of the Appellant No. 2 being Director and therefore
not liable, was not submitted before the Trial Court. He submitted that
during the pendency of the suit there was ample opportunity to the
Appellants to apply for handwriting expert, however no such Application
was made, and as such, mere pendency of such application for handwriting
expert, will not place the Appellants in any better position in the face of
decree. He submitted that going by the oral submissions of the Appellants
Appellant No. 1 - company was stuck off during the pendency of the suit;
therefore, nothing prevented the Appellants from bringing this to the notice
of the Court. He has prayed for withdrawal of the amount deposited, subject
to such terms and conditions as may be imposed by the Court.
10. I have considered rival submissions and perused the record.
11. It is matter of record that cheques in question which got dishonored
have been issued from personal account of Appellant No. 2 and not from the
account of the Appellant No. 1- Company. The letter relied upon by the
Appellants dated 07/04/2011 issued by the bank indicates that the loss of
cheque book was reported on 30/06/2009. There is nothing stated about
theft etc. in this letter. If loss of cheque book was within the knowledge of
the Appellants in June 2009 itself and cheques were issued in January 2010,
it was all the more important for the Appellants to seek handwriting expert
opinion during the Trial. It has not been done. Therefore clearly,
IA/6624/2024 at appellate stage, for appointment of handwriting expert, is
a belated wisdom dawned.
12. Though I have seen the signatures on challans and cheques, I am
7.IA.1556.2023 C.doc
refraining from commenting upon them, at this stage, to avoid any prejudice
being caused to either side, as IA/6624/2024 is pending.
13. According to learned counsel for the Appellants, the Appellant No.1-
company is struck off in July 2017, which is during pendency of the suit.
Nothing prevented the Appellants from raising this issue before the Trial
Court.
14. Viewed in the light of what is observed above, if the impugned
judgement is perused, it can be seen that the Trial Court, on appreciation of
evidence has held that Defendant's witness has admitted in the cross-
examination that no police Complaint was launched with respect to his
alleged case of loss of cheque-book. The Trial Court has considered the
delivery challans and invoices to come to the conclusion that the material
was in fact supplied. It is recorded that Appellant's witness has admitted
having business relations with the Respondent. The cheques issued are
admittedly from the personal account of the Appellant No. 2 and therefore
at least at this interim stage, there is no merit in the contention that the
Appellant No. 2 cannot be held liable for the dues of the Appellant No. 1-
Company being Director. Prima facie, the observation in paragraph 24 of the
Trial Court is only in respect of the change in handwriting with respect to
the cheque amount and there is not even passing observation regarding the
signatures on the delivery challans.
15. In the aforesaid facts and circumstances, there is no strong prima facie
case, not to permit partial withdrawal of the amount, which is deposited in
the Court. It is material to note that already the Appellants are protected
without deposit of full amount under decree. Interest part is not deposited.
Therefore, in order to balance the equities, it is necessary to permit partial
7.IA.1556.2023 C.doc
withdrawal.
16. In that view of the matter, both the above Applications are disposed of
by passing the following order.
(a) The Respondent is permitted to withdraw Rs.20,00,000/- as an
ad-hoc amount, subject to final outcome of the Appeal.
(b) The withdrawal shall be permitted on the undertaking by the
Respondent that the withdrawal of amount will be without prejudice
to the rights and contentions of the parties and that the Respondent
shall bring back the money to the Court along with interest, as may be
directed by the Court. Such undertaking to be filed within a period of
2 weeks from today.
(c) Remaining amount shall be invested in any nationalized bank,
initially for a period of 3 years, and renewed thereafter periodically, as
per prevalent practice.
(d) During the pendency of the Appeal, the judgment and decree
dated 07/10/2022 in Summary Suit No. 4612/2010 by City Civil
Court, Gr. Mumbai shall remain stayed.
(e) The observations in this order will not prejudice either party at
the time of final hearing of the Appeal.
(M. M. SATHAYE, J.)
