Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010000962018 Presented on 04/01/2018
Registered on 27/10/2021
Decided on 02/09/2025
Duration 07Y: 07M: 29D
Exhibit 9
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 939 of 2021
Yogesh Sajan Bhojwani ]
Age: 26 years, Occupation: Business ]
Having address at Shop No. 200, ]
Ashoka Shopping Centre, 1st Floor, ]
Opp. L. T. Marg, Mumbai 400 001 ]
Through its Power of Attorney ]
Sajan Bhojwani, Age 59 years ]...Plaintiff
VERSUS ]
Mr. Niraj G. Kakad ]
Adult age not known, Occ: Not known ]
Authorized Signatory of Niraj Kakad ]
Constructions having address at Flat No. ]
702, 7th Floor, 82/31, Tal Miki Lane, Rajni ]
Gandha CHSL, Santacruz (W) ]
Mumbai 400 054 And also carrying on ]
business from 301, Enterprise Centre ]
Nehru Road, Opp.Sahara Hotel, Near ]
Orchid Hotel, Vile Parle (East), Mumbai. ]...Defendant
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2 SUM SU NO.939/2021
Appearance:-
Ld. advocate Mohammed Wasim Qureshi i/b. Qureshi and Associates
for plaintiff.
Defendant absent (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 02/09/2025.
JUDGMENT
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil procedure, 1908 (C.P.C.) for recovery of Rs. 7,67,500/- along
with interest and prayed for further interest from defendant.
Brief facts of the plaintiff’s case may be summarized as under:
02] As per the plaintiff, his father Sajan Bhojwani executed
Power of Attorney dated 13/05/2017 in his favour to contest the
present suit. Defendant is authorized signatory/Karta of Niraj G. Kakad
HUF and also proprietor of Niraj Kakad Construction. Further, in the
second week of December, 2015, defendant requested plaintiff for
financial help. Therefore, plaintiff advanced an amount of
Rs. 5,00,000/- on 05/01/2015 on interest at the rate of 18% p.a.
Defendant executed bill of exchange on 05/01/2015 in favour of
plaintiff. The defendant failed and neglected to repay the said interest
despite of repeated requests. However, defendant issued cheque
bearing No.912612, drawn on City Bank for an amount of
Rs. 5,00,000/- dated 27/11/2017. The plaintiff deposited said cheque
in the account and it was dishonoured on 28/11/2017 for the reason,
“Account Closed”. Thereafter, plaintiff issued demand notice dated
12/12/2017, which is received by defendant on 23/12/2017.
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Defendant neither replied nor repaid the outstanding amount.
Therefore, plaintiff is entitled for an amount of Rs.7,67,500/-
including interest at the rate of 18% p.a. Hence, this suit.
03] Defendant appeared in the matter. Thereafter, plaintiff has
taken out Summons for Judgment No. 165/2023, which came to be
dismissed on 07/05/2025 and defendant was granted conditional
leave to defend the suit subject to condition that he shall deposit
principal amount within 60 days from the date of this order. Defendant
has failed to comply the said order. The plaintiff has filed Non Deposit
Certificate vide Exh.7 on record. Therefore, plaintiff is entitled for
judgment in view of Order 37, Rule 3(6)(b) of C.P.C.
04] The plaintiff to prove his contention has filed original
documents on record vide list Exh. 5.
Sr.
No. Exhibit Particulars
1 Exh.5/1 Certified copy of General Power of Attorney dated
13/05/2017
2 Exh.5/2 Certified copy of the Bill of Exchange dated
05/01/2015
3 Exh.5/3 Certified copy of the Cheque
4 Exh.5/4 Certified copy of the complainant Banker Memo
5 Exh.5/5 Certified copy of the advocate notice dated 12/12/2017
6 Exh.5/6 Certified copy of the postal receipt
7 Exh.5/7 Certified copy of the Acknowledgment Card
05] Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
which my findings are recorded for reasons given below.
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Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover an amount of Rs.
7,67,500/- from defendant? If yes, at
what rate of interest ?
Yes, the plaintiff is entitled to
simple interest on the amount
of Rs. 5,00,000/- at the rate of
7% p.a. from 04/01/2018 i.e.
the date of filing the suit till its
full realization.
2. What order and decree? As per final order.
R E A S O N S
As to Points No. 1 and 2:-
06] Perused plaint, documents and record. Heard Ld counsel
for the plaintiff. As per the plaintiff, he has filed present suit through
its Power of Attorney namely Sajan Bhojwani. Plaintiff has filed
Certified copy of General Power of Attorney vide List Exh. 5/1. On
perusing said P.O.A., it appears that plaintiff has authorized as
Mr. Sajan Bhojwani to represent the case. As per the plaintiff,
defendant was in need of financial assistance for his business purpose
in the month of December, 2015. Therefore, plaintiff lent an advanced
an amount of Rs.5,00,000/- on 05/01/2015. Defendant agreed to
repay the said amount with interest and executed Bill of Exchange
dated 05/01/2015 in favour of plaintiff for sum of Rs. 5,00,000/-. The
defendant agreed to repay said amount with interest at the rate of
18% p.a. The plaintiff has filed certified copy of Bill of Exchange at
Exh.5/2. On perusing said Bill of Exchange, it appears that it is
executed by defendant however, there is no rate of interest.
07] It is the contention of the plaintiff that after several
demands and requests to the defendant to return the said amount,
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defendant issued cheque bearing No.912612 dated 27/11/2017 drawn
on City Bank for sum of Rs. 5,00,000/-. The plaintiff has filed certified
copy of said cheque vide List Exh. 5/3. Further, plaintiff presented said
cheque for encasement however, it is returned with remark, “Account
Closed” on 28/11/2017. The plaintiff has filed certified copy of cheque
return memo vide list Exh. 5/4. On perusing said documents, it
appears that cheque issued by defendant to the plaintiff was
dishonoured. Therefore, plaintiff issued demand notice dated
12/12/2017 and called upon him to make the payment of outstanding
amount with interest. The said notice is received by defendant on
23/12/2017. The plaintiff has filed certified copy of notice, postal
receipt and AD card on record vide list Exh. 5/5 to 5/7. On perusing
said notice and other documents, it appears it substantiates and
supports the contention of the plaintiff. Thus, plaintiff has
demonstrated from oral and documentary evidence that defendant in
discharge of his liability issued cheque vide list Exh. 5/3 which was
dishonoured. Therefore, plaintiff is entitled for interest at the rate of
18% p.a. on amount of Rs. 5,00,000/- from 05/01/2015 till the date
of filing of the suit. Further, as discussed above, conditional leave was
granted to defendant to defend the suit subject to payment of principal
amount however, defendant failed to comply the said order.
Therefore, plaintiff is entitled for judgment as per Order 37, Rule 3(6)
(b) of C.P.C.
08] So far as further rate of interest is concerned plaintiff has
claimed interest at the rate of 18% p.m. from the date of filing of the
suit till its realization. However, it appears that the rate of interest
claimed by the plaintiff is excessive in nature as compared to the rate
of interest of Nationalized Bank. Therefore, as per Section 34 of the
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C.P.C., I am of the view that it would be just and proper to grant
interest at the rate of 7% p.a. on the principal amount from the date of
filing of the suit till its realization. Hence, I answer point No. 1 in the
affirmative. In the result, answer to point No. 2, I proceed to pass the
following order.
O R D E R
1] The Summary Suit No. 939 of 2021 is decreed with costs.
2] The defendant shall pay to the plaintiff an amount of
Rs. 7,67,500/-(Rupees Seven Lakhs Sixty Seven Thousand Five
Hundred only).
3] The plaintiff is entitled to simple interest on the amount of
Rs. 5,00,000/- at the rate of 7% p.a. from 04/01/2018 i.e. the
date of filing the suit till its full realization.
4] The plaintiff may be entitled to get refund of the court-fees paid,
if any, provided for in rules.
5] The decree shall be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 02/09/2025
Dictated on: 02/09/2025
Corrected & signed on: 03/09/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
04/09/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 02/09/2025
JUDGMENT/ORDER signed by P. O. on6 pt 03/09/2025
JUDGMENT/ORDER uploaded on 04/09/2025
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