Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :03.01.2020
Registered On :16.01.2020
Decided on :04.01.2022
Duration : Y-02/M-00/D-03
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 112 OF 2020
Exhibit- 07
CNR NO.- MHCC01-000137-2020
Varsha Gopal Talreja
Adult, Indian Inhabitant
of Bombay, aged 54 years
carrying on business at
34, Dariya Mahal-A, 80,
Nepeansea Road, Mumbai -400 006. ... Plaintiff
V/s.
1. Rajesh Rasiklal Mehta
Adult, Indian Inhabitant
of Bombay, aged not known
carrying on business in the name and
style of R.R. Chem (India), a Proprietor
Concern as its Sole Proprietor at C/401,
Padmavati Nagar, Dumping Road, Mulund(W),
Mumbai- 400 080.
...Defendants
2. Kanan Rajesh Mehta,
Adult, Indian Inhabitant of Bombay,
age not known
carrying on business and
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residing at C/401,
Padmavati Nagar, Dumping Road, Mulund(W),
Mumbai- 400 080.
Appearance:-
Ms. Kavita Lalwani Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 04/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under order
XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is running business from the address given in the
suit plaint.
Defendant no.1 is carrying on the business in the name of R.R. Chem
(India), a proprietary concern as a sole proprietor. Defendant no.2 is
doing the business from the address given in the suit plaint. The
defendant no.1 on dtd.8.6.2017 for valuable consideration of
Rs.1,50,000/- received from plaintiff, drew a bill of exchange directing
thereby, defendant no.2 to pay to the plaintiff or Order a sum of
Rs.1,50,000/- on demand. Said bill of exchange was accepted and
delivered by defendant no.2 to the plaintiff on the same day. The
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amount of Rs.1,50,000/- was advanced to the defendants by cheque
dtd. 8.6.2017 bearing No.051056 of Rs.1,50,000/- drawn on Union
Bank of India, Pedder Road, Mumbai. Accordingly, the defendants
executed the bills of exchange in favour of plaintiff. They repaid the
sum of Rs.1,25,000 /- to the plaintiff as per the details given in the suit
plaint. The plaintiff thereafter presented demand bill of exchange to
the defendant no.2 and then to defendant no.1 for payment of balance
sum of Rs.25,000/-. The defendants dishonored the demand of bill of
exchange by non payment. Therefore, the defendants are jointly and
severally liable to pay the balance sum of Rs.25,000/- alongwith
interest at the rate of 18% p.a. The plaintiff issued letter/notice through
advocate on 19.9.2019 to the defendants calling upon them to pay the
outstanding amount alongwith accrued interest but the defendants
failed to comply with said requisition. The plaintiff averred that the
defendants are liable jointly and severally to pay the outstanding
amount of Rs.33,400/- as per the Memo of Particulars.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.33,400/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a on
the principal amount of Rs.25,000/- from the date of suit till its
realization. Hence, this suit.
4. The suit summons were duly served on the defendants.
The defendants failed to appear though served with the suit summons.
Hence, suit is posted for judgment as per order XXXVII Rule 2(3) of
Code of Civil Procedure 1908 judgment against defendants.
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5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendants?
A] If yes, what would be the rate
of interest?
Amount of
Rs.33,400/- with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.06 the list of documents:
Sr.
No.
Description of documents Exhibits
1 Demand Bill of Exchange dated
8.6.2017 of Rs.1,50,000/-
Exh. 6/1
2 Copy of Plaintiff’s Advocate’s letter
dated 19.9.2019 alongwith
Acknowledgment.
Exh. 6/2
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.1,50,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.2 to
pay to the plaintiff or order a sum of Rs.1,50,000/- on demand and said
bill of exchange has been accepted and delivered by the defendant no.2
to the plaintiff. Further, it reveals from the record that said transaction
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took place on dtd.8.6.2017, the repayment is lastly made on dtd.
10.2.2018, the notice/letter of demand was issued to the defendants on
dtd. 19.9.2019 and the suit is filed on 03.01.2020. As such, the
plaintiff’s claim in the suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
06 goes to establish that plaintiff has given amount of Rs.1,50,000/- to
the defendants on bill of exchange. The defendants repaid the amount
of Rs.1,25,000/-. The remaining dues against the defendants are
Rs.25,000/-. The plaintiff is claiming Rs.33,400/- which is the amount
calculated with interest at the rate of 18% p.m till the date of filing of
the suit. Said amount is not repaid by any of the defendants. Therefore,
defendants are liable jointly and severally to pay the outstanding
amount of Rs.33,400/- to the plaintiff. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.33,400/- from the defendants jointly and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.33,400/- and said amount is calculated alongwith with
interest at the rate of 18% p.m till the filing of the suit. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 18% per annum
on the principal amount. As per section 34 of the Code of Civil
Procedure the rate of interest may exceed 6% per annum, if the
transaction is commercial and there is no contract pertaining to the
same between the parties. In the present case the transaction is a
commercial one and there is contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
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defendant is liable to pay the interest at the rate of 18% p.a. Therefore,
I hold, the rate of interest at the rate of 18% per annum would be just
and proper to be awarded on the principal sum of Rs.25,000/- . Hence,
point no.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.33,400/- from the defendants3
jointly and severally with interest at the rate of 18% per annum on the
principal sum of Rs.25,000/- from the date of filing of the suit till its
realization. Plaintiff is also entitled to recover cost of the suit from the
defendants. Hence, in answered to point no.2, I proceed to pass the
following order.
ORDER
1. The defendants shall pay Rs.33,400/- (Rs. Thirty
Three Thousand Four Hundred Only) to the plaintiff
jointly and severally, with interest at the rate of 18%
per annum on the principal sum of Rs.25,000/- from
the date of filing of the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 4.1.2022 Gr. Bombay
Dictated on : 4.1.2022
Typed on : 4.1.2022
Signed on : 5.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
5.1.2022 2.00p .m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
4.1.2022
JUDGMENT/ORDER signed by
P.O.on
5.1.2022
JUDGMENT/ORDER uploaded on 5.1.2022
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