Final Order 1

Order Details: Copy of Judgment
Pdf Text: Comm. Suit – 325/21 1 Judgment
MHCC010001292019 Presented on : 03012019
Registered on : 24072019
Decided on : 22022022
Duration : Y M D
3 1 19
BEFORE THE CITY CIVIL COURT, GR. BOMBAY
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.325 OF 2021
(SUMMARY SUIT NO.752 OF 2019)
Exh.9
Jagdish Kumudchandra Chheda
Through POA holder,
Mr. Manish Jagdish Chheda
Age 71 years, Occ. : Retired,
Residing at : 3/10, Mayfair Building,
3rd Floor, V.N. Road, Churchgate,
Mumbai 400 020. ...Plaintiff
Versus
Bharani Bros, proprietary firm
Through proprietor Nilesh Bharani
Having office at : 5, Sharda Sadan,
7, S.G. Marg, Dadar (East),
Mumbai 400 014 and residing at,
803, Ekta Residency, Bwing,
Building No.79, Tilak Nagar,
Chembur (West), Mumbai 400 089. ...Defendant
_____________________________________________________________________________________________________________________________
Ld. Advocate Priya Rombade for plaintiff.
Ld. Advocate Miloni Gala for defendant.
_____________________________________________________________________________________________________________________________
JUDGMENT
(Delivered on 22nd day of February, 2022)
Suit is for recovery of an amount of Rs.22,72,000/
along with future interest from the date of filing suit till it’s
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Comm. Suit – 325/21 2 Judgment
realization.
2. Briefly stated, plaintiff’s case, is as under :
Defendant does the business of money lending. On
01.07.2016, defendant approached plaintiff for loan of
Rs.16,00,000/. Defendant was suffering from financial problems
and he was in need of said amount for maintaining his business.
Defendant agreed to repay loan amount within six months along
with interest @ 1% per month. Relying upon the representations
made by defendant, plaintiff advanced loan amount of
Rs.16,00,000/ to defendant. As against this loan amount,
defendant issued promissory notes dated 01.07.2016. Three
promissory notes were each of Rs.5 Lacs and one promissory note
was of Rs.1 Lac. Defendant duly executed these promissory notes
and promised to repay the amount with interest @ 1% per month
at the end of six months.
3. Plaintiff contacted defendant for several times and
asked for repayment of the loan amount. But, defendant started
avoiding plaintiff. Hence, this suit for recovery of loan amount
along with interest.
4. In pursuance to service of writ of summons,
defendant filed his appearance as contemplated under Order 37
Rule 2(3) of C.P.C. Thereafter, plaintiff has taken out summons
for judgment no.53/2020. Defendant applied for leave to defend
the suit. On hearing both sides, this Court by order dated
06.09.2021, granted conditional leave to defend the suit.
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Comm. Suit – 325/21 3 Judgment
Defendant was directed to deposit principal amount of
Rs.16,00,000/ within a period of 12 weeks. However, defendant
failed to deposit the amount as per order in summons for
judgment no.53/2020.
5. On 14.12.2021, plaintiff applied for exparte decree.
By the order dated 14.12.2021, plaintiff was permitted to proceed
exparte. Plaintiff filed claim affidavit of PW1 Manish Chheda at
Exh.7 and original documents below list Exh.8.
6. Heard arguments of Adv. For plaintiff.
7. Following points arise for determination, findings
thereon for the reasons to follow, are as under:
Sr.
No.
Points Findings
1. Does the plaintiff prove that he
advanced loan amount of
Rs.16,00,000/ to defendant ?
Proved
2. What order? Suit is partly decreed
as per final order.
REASONS
Point No.1 :
8. In order to substantiate the claim, as stated supra,
plaintiff filed claim affidavit of his power of attorney holder
Manish Jagdish Chheda at Exh.7. Plaintiff also filed original
documents below list Exh.8.
9. Summary suit under Order 37 Rule 2 of C.P.C. is
filed based upon promissory notes. As stated above, as per order
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Comm. Suit – 325/21 4 Judgment
dated 06.09.2021, conditional leave to defend the suit was
granted to defendant. However, defendant failed to comply the
said order within stipulated period.
10. PW1 Manish Chheda testified all facts pleaded in the
plaint. He deposes that plaintiff advanced loan amount of
Rs.16,00,000/ to defendant and as against this, defendant
executed promissory notes. Plaintiff’s claim is well supported by
original promissory notes filed on record. Defendant, in his leave
to defend application, contended that plaintiff does the business
of money lending and promissory notes are forged. However,
defendant failed to comply the order passed in summons for
judgment. Thus, defendant failed to contest the suit. Plaintiff’s
claim for advancement of loan amount of Rs.16,00,000/ is well
supported by original documents on record. Therefore, plaintiff’s
claim for advancement of loan amount of Rs.16,00,000/ based
upon original documents needs to be accepted. Point No.1 is
answered accordingly.
11. Plaintiff claimed interest @ 1% per month for first six
months and thereafter, interest @ 18% p.a. Plaintiff claims that
defendant agreed to pay interest @ 1% per month. However,
plaintiff’s claim for interest is not supported by contents in
original promissory notes filed on record. In all, four promissory
notes are filed on record. In three promissory notes of Rs.5 Lacs
each, rate of interest is not mentioned. Only in the promissory
note of Rs.1 Lac, rate of interest @ 1% per month is mentioned.
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Comm. Suit – 325/21 5 Judgment
Thus, on perusal of promissory notes, it cannot be inferred that
defendant agreed to pay rate of interest as claimed by the
plaintiff. Therefore, plaintiff is not entitled to the interest @ 12%
p.a. for first six months and thereafter, 18% p.a. as prayed for.
However, taking into consideration, nature of transaction and
interest for fixed deposits offered by Nationalized Banks to senior
citizens, plaintiff is entitled to get interest @ 6% p.a. from the
date of advancement of loan till its realization. In the result,
following order :
ORDER
1. Suit is partly decreed with costs.
2. Defendant shall pay an amount of Rs.16,00,000/
(Rupees Sixteen Lacs only) alongwith interest @ 6%
p.a. to plaintiff from 01.07.2016 till it’s 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.
22/02/2022 ( SUNIL U. HAKE )
JUDGE,
CITY CIVIL COURT,
GR. BOMBAY.
Directly dictated on computer : 22/02/2022
Signed on : 22/02/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.02.2022 at 05.15 p.m.
UPLOAD DATE AND TIME
(AMIT DATTATRAY SHINDE)
COURT TYPIST, COURT NO.14
Name of the Judge HHJ SHRI S.U. Hake
(COURT NO.14)
Date of pronouncement of
judgment/order
22.02.2022
Judgment/order signed by P.O. on 22.02.2022
Judgment/order uploaded on 22.02.2022
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