Rajesh Varma vs Aminex Holdings & Investments

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Bom) 19

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
A.M.KHANWILKAR, J.
Rajesh Varma - Plaintiff
vs.
M/s.Aminex Holdings & Investments and others - Defendants
SUMMARY SUIT NO.2997 OF 1999
Decided on: JANUARY 10, 2008

Advocates:
Advocate appeared:
Mr.J.M. Shah for Plaintiffs.
Mr.Sanjay Jain i/b Mr. A.V.Jain for Defendants.

Headnote:Evidence Act, 1872 - Section 61-Exhibiting of document-Exhibited document alongwith its enclosures not marked as collectively-Enclosures cannot be read in evidence as they are not taken on record, contended-Contention cannot be accepted.-As mentioned earlier, the defendants admitted all other documents produced on behalf of the plaintiff on which the plaintiff would rely. The said documents have been taken on record and marked Exhibits P-2 to P-8 which form part of the compilation. Insofar as Exhibits P-2, P-3, P-4 and P-5 are concerned, the same pertain to the two cheques in the sum of Rs. 1,20,000/- and Rs. 5,00,000/- which were issued by the defendants but dishonoured upon presentation in relation to which criminal action came to be instituted and eventually settled upon defendants making payment towards full and final payment of the respective dishonoured cheque amount. Document at Exhibit P-6 is the legal notice sent to the defendants which refers to the Bill of Exchange dated 8th May, 1996. Exhibit P-7 is the complaint along with annexures thereto from pages 14 to 25 in respect of criminal case No. 1069/S/2003 in relation to dishonoured cheque of Rs. 1,20,000/-. Exhibit P-8 at pages 26 to 48 in the compilation of documents is the complaint along with accompaniments thereto in relation to criminal case No. 765/S/1999 in respect of dishonoured cheque of Rs. 5,00,000/- one of the accompaniment of the said complaint (Exhibit F thereto at page 39 of the compilation) is the reply given by the defendants sent through Advocate dated 26th March, 1999. In paragraph 3 of the said reply, it is clearly admitted on behalf of the defendants that the defendants have taken loan from the plaintiff and have executed the Bill of Exchange in the year 1996. This document has been admitted by the defendants. However, counsel appearing for the defendants vehemently argued that this document, which is accompaniment to the complaint of case No. 765/S/1999, cannot be looked into as it is not taken on record and separately exhibited. This argument is devoid of merits. As mentioned earlier, Exhibit P-7 and Exhibit P-8 are copies of the two separate complaints along with the annexures or accompaniments thereto filed by the plaintiff in relation to two dishonoured cheques. The said documents have been marked as Exhibits P-7 and P-8 respectively along with its accompaniments. The accompaniments to each of this complaint form part of the record. Instead of describing those documents as Exhibit P-7 and P-8 collectively, it has been recorded as Exhibits P-7 and P-8 only. The defendants cannot take advantage of such obvious error committed by the Officer of the Court. If Court may say so, it is a clerical error committed by the Officer of the Court. The fact that the said document at page 39 of the compilation of the documents is already on record before the Court and is an accompaniment of the complaint in relation to criminal case No. 765/S/1999 in the form of Exhibit F thereto, is not in dispute at all. It is too late in the day for the defendants to make grievance that the said document cannot be looked into, having already admitted the same on the earlier occasion.
Limitation Act, 1963 - Sections 5 and 12-Suit for recovery of money-Limitation for-Suit filed regarding Bill of Exchange drawn on 8.5.1996-Dishonoured on 8.5.1997-Limitation starts from date of dishonour-Suit filed on 5.5.1999 not barred by limitation.-This issue has been framed essentially because of the plea taken by the defendants in the written statement in para 1(b) that the suit is barred by the Law of Limitation. Except this bare statement, no other details are forthcoming as to why the suit claim is barred by Law of Limitation. On the other hand, according to the plaintiff, the present suits is filed in relation to the Bill of Exchange drawn on 8th May, 1996 and in particular, on account of dishonour of the said Bill of Exchange by the defendants on 8th May, 1997. The limitation would obviously start running from the said date. The present suit having been filed on 5th May, 1999, therefore in my view, is well within limitation.

JUDGMENT :

1. This Suit is filed against the Defendants for recovery of sum of Rs.8,59,000/- (Rupees Eight Lakhs Fifty-nine Thousand) with further interest on the principal amount of Rs.5,00,000/- (Rupees Five Lakhs) at the rate of 24% per annum or at such other rate as the Court may deem fit and proper from the date of filing of the Suit till payment and/or realisation and cost of the Suit.

2. The Plaintiff claims to have extended loan to Defendant No.1 in the sum of Rs.5,00,000/- (Rupees Five Lakhs) against Bill of Exchange for the like amount upon the Defendant Nos.3 and 4 ordering them to pay to the Plaintiff or order payable on demand said sum of Rs.5,00,000/- (Rupees Five Lakhs) for value received by the Defendant No.1 by way of two cheques in the sum of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) bearing Nos.386445 drawn in favour of Defendant No.1 on City Bank, Sir P.M. Road, Mumbai and another cheque bearing No.190601 dated 8th May 1996 drawn in favour of Defendant No.1 of Standard Chartered Bank, D.N.Road, Mumbai. According to the Plaintiff, the Bill of Exchange has been executed on 8th May 1996. Further, the said Bill of Exchange was accepted by the Defendant Nos.3 and 4 on the same day by endorsing their signatures thereon. The Plaintiff asserts that the Bill of Exchange was presented on 8th May 1997 to Defendant Nos.3 and 4 for payment, however, the same was dishonoured for non-payment. Consequently, the Plaintiff called upon the Defendant No.1 to make good the amount along with interest at the rate of 24% per annum as provided in the said Bill of Exchange. It is the case of the Plaintiff that after repeated demands, the Defendant No.1 made over cheque No.376545 dated 7th February 1999 in the sum of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand) drawn by Defendant No.1 in favour of the Plaintiff on Abhyudaya Co-operative Bank Ltd. towards interest. The said cheque, when presented, however, was dishonoured by the Bank on 9th February 1999 and returned with remark "Refer to Drawer" which was forwarded by the Union Bank of India to the Plaintiff along with Memorandum dated 10th February 1999. The Plaintiff further asserts that on repeated demands, Defendant No.1 issued another cheque bearing No.564837 dated 8th March 1999 in the sum of Rs.5,00,000/- (Rupees Five Lakhs) drawn by Defendant No.1 in favour of Plaintiff on Canara Bank. Even the said cheque when presented, was dishonoured and returned to the Plaintiff with Banker’s remark ‘for insufficient funds’. As both the cheques were dishonoured and the Defendants failed and neglected to pay the outstanding amount in relation to the stated Bill of Exchange to the Plaintiff, the Plaintiff has been driven to file the present Suit for the reliefs already referred to above which was filed on 5th May 1999. The above Suit came to be filed before this Court under Order XXXVII of the Code of Civil Procedure, 1908 (‘C.P.C.’). The Plaintiff took out Summons for Judgment which came to be dismissed vide order dated 7th August 2002. The hearing of the Suit has proceeded thereafter.

3. The Defendants filed joint written statement dated 10th February 2005 to counter the case made out by the Plaintiff. The Defendants pleaded that the Suit was not maintainable in Law. It was barred by Law of Limitation. Further, the Plaintiff is engaged in money lending business without holding a valid license in that behalf. For that reason, the Suit was not maintainable in view of the provisions of the Bombay Money Lenders Act, 1946 ("Act of 1946"). To support that plea, in Paragraph 1(c) of the Written Statement, Defendants have adverted to the circumstances that would indicate that the Plaintiff has filed several criminal complaints for recovery of outstanding amount against several parties in respect of amounts lent by the Plaintiff to them on heavy rate of interest. The Defendant in Para 1(d) of the Written State

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2008 Supreme(Bom) 19

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONA.M.KHANWILKAR, J.Rajesh Varma - Plaintiffvs.M/s.Aminex Holdings & Investments and others - DefendantsSUMMARY SUIT NO.2997 OF 1999Decided on: JANUARY 10, 2008

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
A.M.KHANWILKAR, J.
Rajesh Varma - Plaintiff
vs.
M/s.Aminex Holdings & Investments and others - Defendants
SUMMARY SUIT NO.2997 OF 1999
Decided on: JANUARY 10, 2008