Allowed

praful manohar vaidya v. vijay rupchand ranka

Bombay HC13 Jun 2014APP/346/2007

Case brief

AI extract

What is this about?

Single Judge had decreed a summary suit for recovery of gold bar price. High Court found facts creating a triable issue regarding allegation of duress and custody. Allowed appeal and granted conditional leave to defend upon deposit of sum.

What did the court decide?

Impugned order set aside; conditional leave to defend granted upon depositing Rs.4,62,000/- with Registrar Bombay City Civil Court.

praful manohar vaidya Vs vijay rupchand ranka — Contract and Commercial Disputes | Bombay HC (2014)

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app346-07

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sas

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.346 OF 2007 IN SUMMONS FOR JUDGMENT NO.602 OF 2007 IN' SUMMARY SUIT NO.3271 OF 2006

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Praful Manohar Vaidya ..Appellant.

V/s.

Vijay Rupchand Ranka

..Respondent.

Mr. Atul Damle for the appellant.

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Mr. Anil Chavan i/b. M.N. Vaishnawa for the respondent.

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CORAM : S.J. VAZIFDAR, AND A.K. MENON, JJ.

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DATED : 13TH JUNE, 2014

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P.C. :-

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This appeal is directed against the order dated 6^th March, 2007 passed by the Hon'ble Single Judge decreeing the suit for recovery of the price of a gold bar said to have been sold by the Plaintiff-Respondent to the Defendant-Appellant. The suit is based on a writing dated 27^th September, 2005 alleged to have been executed by the Appellant. A police complaint filed by one Lata Praful Vaidya, wife of the Appellant against her cousin brother Devendra Bhalchandra

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app346-07

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Patankar alleges that the accused had collected gold bars on behalf of the Appellant, from the Respondent. According to the Appellant the Respondent had obtained his signature on a blank stamp paper while the Appellant was in police custody pursuant to a complaint filed by the Respondent. He also contends that the invoice upon which the suit is based does not bear his signature and, therefore, a Summary Suit is not maintainable.

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The Appellant relies upon an F.I.R. registered pursuant to a a criminal case filed by the Respondent against the said Devendra Bhalchandra Patankar, Mahesh Bhalchandra Patankar, Vinayak Pashte and the Appellant, bearing F.I.R. No.297/05 dated 15^th November, 2005 for offences punishable under Section 406, 420 r/w. 34 of the Indian Penal Code with L.T. Marg police station alleging that the Appellant and other accused committed criminal breach of trust inter alia in relation to a gold bar weighing 1500.200 gm. worth Rs.10,11,396/-. The Appellant was arrested 5^th December, 2005 and released on bail on 12^th December, 2005 pursuant to the said F.I.R.

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Mr. Damle, learned counsel for the Appellant submits that in the reply dated 18^th August, 2006 to the legal notice apart from denying purchase of the gold bar, the Appellant had contended that the writing dated 27^th September, 2005 was ante dated and obtained under

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duress while he was in police custody. Although the gold bar is said to have been sold by the Respondent under an Invoice dated 1^st September, 2000 a police complaint was filed by the Respondent against the Appellant and the others on 17^7h November, 2005 even before the demand notice was issued on 12^th June, 2006.

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In the rejoinder dated 15^th September, 2006, the Respondent has contended that the appellant was in police custody from 5^th December, 2005 upto 12^th December, 2005 and the stamp vendor had issued the stamp paper on 27^th September, 2005. He further contends that the writing was signed by the Appellant on 27^th September, 2005 itself and the document is written by the Appellant in his own handwriting much before the Appellant was in police custody. Perusal of the document, however, does not reveal that it was written on 27^th September, 2005. The document is handwritten in Devangari script whereas the signature is in English and not dated. Furthermore, the correspondence referred to above is silent on the issue of F.I.R. No.297/05 dated 17^th November,2005 which has not been disclosed by the Respondent. It has now been produced by the Appellant in response to a query from the Court. Moreover, the complaint filed by the Respondent on 17^th November, 2005 refers to gold worth Rs.10,11,396/- i.e. more than double the value of the invoice amount

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app346-07

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which the Respondent claims in his suit.

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Although the Appellant has executed the documents, in view of the other documents and circumstances, we are of the opinion that the Appellant is entitled to conditional leave to defend the suit.

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Accordingly, the impugned order dated 6^th March, 2007 is hereby set aside and the Appellant-Defendant is granted leave to defend conditional upon his depositing a sum of Rs.4,62,000/- within a period of 8 weeks from today. If the amount is so deposited with the Registrar, Bombay City Civil Court at Bombay, the Registrar to invest the said amount in fixed deposit of a nationalised bank, initially for a period of one year and thereafter for successive periods of one year each till final orders in the suit. After depositing the amount, the Appellant shall file his written statement within four weeks. Affidavit of document within 6 weeks thereafter. Discovery and inspection forthwith thereafter. Suit be placed on board for framing the issues within two weeks thereafter. No order as to costs.

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(A.K. MENON, J.) ( S.J. VAZIFDAR, J.)

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praful manohar vaidya v. vijay rupchand ranka

Case brief

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praful manohar vaidya v. vijay rupchand ranka

Case brief

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