Final Order 2

Order Details: Ex-parte Judgement
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MHCC010000872019 Presented on : 03-01-2019
Registered on : 22-02-2019
Decided on : 11-08-2022
Duration : Y M D
03 07 08
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.324 OF 2021
(SHORT CAUSE SUIT NO.329 OF 2019)
Ex.10
Sandhya Navalkishore Khandelwal,
an adult, aged 50 years, having address
Hasham Premji Building, 439, Kalbadevi Road,
3rd Floor, Room No. 3 & 4,
Mumbai 400 002, through her
Constituted Attorney Navalkishore G.
Khandelwal aged 53 years. ..Plaintiff
VERSUS
1. Ahuja Properties and Developers Associates
Having office at A/201,Raipipla,
Opp. Standard chartered Bank,
Linking road, Santacruz West,
Mumbai 400 054.
2 Jagdish Ahuja, an adult,
agednot known, partner/director of
Ahuja Properties and Developers Associates
A/201, Raipipla, Opp. Standard chartered Bank,
Linking road, Santacruz(W),
Mumbai 400 054.
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3. Gautam Jagdish Ahuja,
an adult, aged not known,
partner/director of Ahuja Properties
and Developers Associates
Flat No.72, 7th Floor, Soonavilla,
Perry Cross Road, Bandra (W),
Mumbai400 050. ..Defendants
Ld. Advocate Vandana Chaurasiya for plaintiff.
DefendantsExparte.
JUDGMENT
(Delivered on 11th day of August, 2022)
Suit is for recovery of an amount of Rs.5,89,894/
along with further interest.
Plaintiff's case, may be summarized, as under:
2. Defendant No.1 is a partnership firm. Defendant
Nos.2 and 3 are the partners of defendant No.1partnership firm.
Defendants made request for financial help with plaintiff. As per
defendants' request, plaintiff advanced loan of Rs.5 lacs by cheque
bearing No.039522 drawn on Union Bank of India. Said cheque
was honoured on 25/02/2016. Initially, defendants paid interest
at the rate of 21% p.a. and thereafter they started paying interest
at the rate of 12% p.a. from 01/04/2017. Defendants paid an
amount of Rs.33,188/ towards principal amount and an amount
of Rs.4,66,813/ is outstanding against defendants towards
principal amount.
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3. In order to repay the loan amount, defendants issued
cheque of Rs.5 lacs bearing No.458296 on 30/09/2017 drawn on
Cosmos Coop Bank Ltd.,Vile Parle branch. Plaintiff presented
said cheque for encashment. However, said cheque was
dishonoured on 14/12/2017 for the reason of 'insufficient fund'.
An amount of Rs.4,66,813/ is outstanding against defendants
towards principal amount, whereas an amount of Rs.1,23,082/ is
outstanding towards interest. Thus, as on 30/11/2018, total
amount of Rs.5,89,894/ is outstanding against defendants.
4. In pursuance to the writ of summons, defendant
Nos.1 to 3 appeared before the Court. Thereafter, plaintiff has
taken out Summons for Judgment No.113 of 2021 against
defendant Nos.1 to 3. As per order passed in Summons for
Judgment No.113 of 2021 dated 11/01/2022, conditional leave
to defend the suit was granted to defendants. Defendants were
directed to deposit a sum of Rs.5 lacs in the Court within a period
of 12 weeks from 11/01/2022. However, defendants failed to
comply said order. Therefore, suit proceeded exparte against
defendant Nos.1 to 3.
5. Heard Ld. advocate for plaintiff.
6. Following points arise for determination, findings
thereon for the reasons to follow are as under:
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Sr.No. Points Findings
1. Does the plaintiff prove that an
amount of Rs.5,89,894/ is
outstanding against defendants?
Proved
2. What order? Suit is decreed as per
final order.
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff has filed
claim affidavit of PW1 Navalkishore G. Khandelwal at Ex.8 and
placed reliance upon documents filed below list Ex.9.
8. PW1 Navalkishore reiterated all the facts pleaded in
the plaint in his claim affidavit. PW1 Navalkishore deposes that
defendant Nos.2 and 3 approached plaintiff for the financial
assistance. Plaintiff advanced a sum of Rs.5 lacs by cheque
bearing No.132990 drawn on Union Bank of India. Said cheque
was encashed on 07/03/2012. PW1 Navalkishore testifies that
due to oversight, wrong cheque number is mentioned in the suit.
9. Ledger account filed on record shows that defendants
paid interest of Rs.46,812/ during the period from 01/04/2016
to 31/03/2017 and an amount of Rs.4,66,813/ was outstanding
against defendants.
10. Plaintiff has filed on record photocopy of the bank
passbook which shows that cheque issued to defendant No.1 was
encashed on 07/03/2012 and an amount of Rs.5 lacs was debited
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from the account of plaintiff. Ledger account filed on record
shows that defendants paid amounts of Rs.23,887/, Rs. 4651/
and Rs.4650/ during the period from 01/04/2016 to
31/03/2017 and principal amount of Rs.4,66,813/ was
outstanding against defendants. Record further shows that
defendants issued a cheque of Rs. 5 lacs bearing No.458296 dt.
30/09/2017 drawn on Cosmos Coop Bank Ltd.,Vile Parle branch.
Said cheque was dishonoured due to insufficient funds in the
account of defendants. Suit is based upon dishonour of cheque
issued by defendants. As stated supra, defendants failed to
comply order passed in Summons for Judgment No.113/2021,
therefore, suit proceeded exparte against defendants. Plaintiff's
claim is well supported by documents filed on record. Therefore,
plaintiff's claim under Order 37 Rule 2 of C.P.C. needs to be
accepted. By applying interest at the rate of 12% p.a., plaintiff
claimed an amount of Rs.5,89,894/. Suit is based upon
dishonour of cheque, therefore, plaintiff is entitled for the interest
amount as prayed for. Thus, plaintiff established that an amount
of Rs.5,89,894/ is outstanding against defendants. Point No.1 is
answered accordingly.
11. Plaintiff claimed interest at the rate of 12% p.a. from
the date of filing of suit till its realization. Taking into
consideration the nature of transaction and agreed rate of
interest, plaintiff is entitled to get interest at the rate of 12% p.a.
from the date of filing of suit till it's realization. In the result,
following order:
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ORDER
1. Commercial Suit No.324 of 2021 is decreed with costs.
2. Defendants shall pay an amount of Rs.5,89,894/(Rupees Five
Lacs Eighty Nine Thousand Eight Hundred Ninety Four only)
along with interest @ 12% p.a. on the principal amount of
Rs.4,66,813/ to plaintiff from the date of the suit till its
realization within two months.
3. Court fees be refunded as per (E) Rules framed under Section
11(2) of the Bombay City Civil Court Act, 1948, for the refund of
Institution Fee.
4. Decree thus follow.
11/08/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 11/08/2022
Transcribed on : 12/08/2022
Signed on : 17/08/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
17/08/22 at 05.00 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 11/08/22
Judgment and order signed by P.O. 17/08/22
Judgment/order uploaded on 17/08/22
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