Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S.C.Suit No. 394/2019. 1 Ex-parte Judgment.
MHCC010001582019 Presented on : 04.01.2019
Registered on : 04.01.2019
Decided on : 25.11.2025
Duration: : Y:06 M:10 D:21
Exh.24
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMARY SUIT NO.394 OF 2019
1. Mr. Vijaykumar Himatlal Modi )
Age: 61 years, Occ: Service )
R/o Modi Building No.2, B/504, )
Akshar Apartments, Irani Wadi No.3, )
Kandivali(W), Mumbai- 400 067. )
2. Mrs. Sheela Vijaykumar Modi )
Age: 59 years, Occ: Housewife )
R/o Modi Building No.2, B/504, )
Akshar Apartments, Irani Wadi No.3, )
Kandivali(W), Mumbai- 400 067. )
3. Mr. Bhavish Vijaykumar Modi )
Age:29 years, Occ: Self-employed )
R/o Modi Building No.2, B/504, )
Akshar Apartments, Irani Wadi No.3, )
Kandivali(W), Mumbai- 400 067. )..Plaintiffs
VERSUS
Mr. Atul Arvind Kamdar
The proprietor of M/s. A.K.Traders
Age: Adult, Occ: Business
Having office address at
C/o. Bharat Line Limited, Bharat House,
4th floor, 104, B.S. Marg, Mumbai- 400 001 )..Defendants
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Appearance:-
Adv. Kanchan Singh for the plaintiffs.
None present for Defendant.
Suit proceeded ex-parte against defendant.
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S.C.Suit No. 394/2019. 2 Ex-parte Judgment.
CORAM : HER HONOUR JUDGE
MRS. MADHURI MILIND DESHPANDE.
(COURT NO.66).
DATED : 25th November, 2025.
JUDGMENT
(Delivered on 25th November, 2025.)
1. This is suit for recovery of the amount.
2. Brief facts of the case are as follow :
The plaintiffs have filed the present suit for recovery of amount of
Rs.49,34,968/- from the defendant. Defendant is the proprietor of M/s.
A.K. Traders. Plaintiff No.1 was having good friendly relations with the
defendant and they know each other since 2001. Sometimes in
September, 2016, the Defendant was in need of money and approached
plaintiff No.1 for financial assistance. The defendant assured that the
money to be advanced by the plaintiffs would be refunded within
period of 18 months alongwith interest at the rate of 36% p.a.
Considering friendly relations and believing on assurance given by the
defendant, the plaintiffs agreed to provide financial assistance to the
him. Accordingly, plaintiffs from time to time provided financial
assistance to the defendant as under:-
Transferor Date Amount
Plaintiff No.1 17.12.2016 Rs.1,74,000/-
29.12.2016 Rs.2,00,000/-
29.12.2016 Rs.2,00,000/-
By Cash Rs.39,000/-
Plaintiff No.2 29.12.2016 Rs.1,00,000/-
Plaintiff No.3 15.10.2016 Rs.7,00,000/-
Total Rs.14,13,000/-
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S.C.Suit No. 394/2019. 3 Ex-parte Judgment.
(ii) The plaintiffs further contended that from June, 2018 they
started demanding their money alongwith interest thereon. However,
the defendant protracted refunding the amount on one pretext or
another. After August, 2018, the plaintiffs continuously demanding
money but the defendant turned blind eyes to the plaintiffs’ request. At
that point of time, the plaintiffs realized that defendant had no
intention to refund money advanced by the plaintiffs and therefore,
plaintiffs decided to take legal action against defendant and same was
intimated to him. Accordingly on 7.9.2018 a meeting was convened. To
avoid litigation, the defendant once again requested the plaintiffs to
wait for some time as he need time to arrange the money. The
defendant also guaranteed that he would repay all the amount
alongwith interest by end of September, 2018. Therefore, the plaintiffs
insisted for promissory notes to be issued in favour of the plaintiffs
which were duly signed in presence of Defendant’s uncle Mr. Dayalal G.
Kamdar. By the said promissory notes, the defendant agreed to pay a
sum of Rs.45,27,495/- which include principal amount alongwith
interest thereon @ 36% p.a. till August, 2018. The promissory notes
have been duly notarized by the defendant and same would be
honoured on or before 30th September, 2018.
(iii) As per promissory notes, plaintiffs demanded the amount of
Rs.45,27,495/- from the defendant but once again the defendant sought
more time to arrange the said amount. Thereafter they continuously
requested defendant to honour the promissory notes and make payment
of Rs.45,27,495/-. However, the defendant did not pay heed to the
plaintiffs’ request. The plaintiffs made several calls to the defendant to
recover their money. The plaintiffs also met the defendant at his father’s
office several times, but all their efforts were in vain. Subsequently, the
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S.C.Suit No. 394/2019. 4 Ex-parte Judgment.
defendant stopped responding and avoiding the plaintiffs. The
defendant owes the plaintiffs a sum of Rs.45,27,495/- and same is
substantiated by the statements of account. The defendant always
made false assurances to the plaintiffs in respect of refund of amount of
Rs.45,27,495/-. Believing defendant’s assurance, the plaintiffs always
given an opportunity to repay, however, now it is evident that the
defendant has ill intent to siphon off outstanding amount. Despite
various requests and reminders, the defendant failed and neglected to
pay a sum of Rs.45,27,495/- alongwith interest at the rate of 36% p.a.
to the plaintiff, hence, the plaintiffs filed the present suit.
3. The plaintiffs served writ of summons upon defendant and filed
affidavit of service at Exh.3. The defendant did appear through his
Advocate but later on defendant failed to appear since 11.10.2023. His
Advocate also filed pursis vide Exh.6 to withdraw her Vakalatnama on
11.10.2023. Hence, suit proceeded ex-parte against defendant vide
vide order dated 4.8.2025.
4. The plaintiffs examined plaintiff No.1 Vijaykumar Modi at Exh.8
and also filed following documents alongwith list Exh.9:-
Sr.
No.
Particulars
1 Exh.14 Plaintiff No.1’s original HDFC Bank, Borivali West
Chamunda Circle Branch account’s statement for the
period of 1.12.2016 to 31.12.2016 for Saving Account
No.01451140006146.
2 Exh.15 Plaintiff No.1 original passbook of IDBI Bank, Nariman
Point Branch Saving Account No.0039104000297554
reflecting the debit of the amount of Rs.2,00,000/- on
29.12.2016 through RTGS to the Bank Account of
Defendant.
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S.C.Suit No. 394/2019. 5 Ex-parte Judgment.
3 Exh.16 Original Passbook of Plaintiff No.2 Saving Bank
Account No. 003910100013148 of Bank of India,
Prathana Samaj Branch, Mumbai reflecting the debit of
the amount of Rs.1,00,000/- on 29.12.2016 through
NEFT to the Bank Account of the defendant.
4 Exh.17 Plaintiff No.3’s original Laxmi Vilas Bank (Now taken
over by DBS Bank), Fort Branch, account statement for
the period of 15.10.2016 to 7.2.2017 for Account
No.0174301000024440 issued with duly signed and
stamped by the Bank Officer reflecting the debit of the
amount of Rs.7,00,000/- on 15.10.2016 vide Chq.
No.000032 which was issued in the name of
defendant.
5 Exh.18 Photocopy of Laxmi Vilas Bank receipt dated
20.11.2017 issued by the banker of Plaintiff No.3
confirming the fund transfer of Rs.7,00,000/- from
plaintiff No.3’s Bank Account to Defendant Bank
Account on 15.10.2016.
6 Exh.19 Original three Demand Promissory Notes dated
7.9.2018 of Rs.6,46,875/-,Rs.25,46,450/-and
Rs.13,34,170/- alongwith 3% interest per month
respectively aggregating to Rs.45,27,495/- issued on
joint names of all plaintiffs.
7 Exh.20 Letter from HDFC Bank dated 20.7.2024
8 Exh.21 Letter from Bank of India Bank dated 6.7.2024
9 Exh.22 Letter from DBS Bank dated 6.7.2024
10 Exh.23 Letter from IDBI Bank dated 6.7.2024
5. The plaintiffs closed their evidence.
6. Heard learned counsel Kanchan Singh for the plaintiffs. Gone
through the documents filed on record and written notes of arguments
filed by plaintiffs at Exh.13.
7. Considering facts, evidence and arguments advanced by the
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S.C.Suit No. 394/2019. 6 Ex-parte Judgment.
plaintiffs, following points arise for determination of the suit and
findings thereupon for the reasons stated are as follows :
SR.NO. POINTS FINDINGS
1 Do plaintiffs prove that the
defendant failed to repay an
amount advanced by them and
issued Promissory Notes on
7.9.2018?
..In Affirmative
2 Do the plaintiffs entitled for an
amount advanced by them to the
defendant with interest? If yes,
what amount?
..In Affirmative.
The defendant shall pay an
amount of Rs.14,13,000/-
to the plaintiffs alongwith
interest at the rate of 12%
per annum from 7.9.2018
till today i.e. 25.11.2025 &
future interest on
Rs.14,13,000/- at the rate
of 6% p.a.from the date of
decree till full and final
realization of the amount.
3 What order ..As per final order.
REASONS
AS TO POINT NO.1 & 2 :-
8. The plaintiffs have filed evidence affidavit of Plaintiff No.1
Vijaykumar Himatlal Modi at Exh.8 and reiterated the contents of the
plaint and supported the plaint. The plaintiffs have placed on record
documentary evidence to prove their case. On perusal of document at
Exh.14 original statement of account of HDFC Bank, Borivali West
Chamunda Circle Branch, for the period from 1.12.2016 to 31.12.2016
for Saving Account No.01451140006146 of plaintiff No.1 Vijaykumar
Modi reveals that on 17.12.2016 an amount of Rs.1,74,000/- was
debited from the account of plaintiff No.1 through NEFT to the account
defendant A.K.Traders. On perusal of original passbook of IDBI bank of
plaintiff No.1 at Exh.15 reveals that an amount of Rs.2,00,000/- was
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S.C.Suit No. 394/2019. 7 Ex-parte Judgment.
debited from the account of Plaintiff No.1 Vijaykumar Modi in the
account of A.K.Traders. On perusal of Original Passbook of Plaintiff
No.2 Sheela Modi of Bank of India, Prathana Samaj Branch at Exh.16,
reflects debit of the amount of Rs.1,00,000/- on 29.12.2016 through
NEFT to the Bank Account of the defendant A.K.Traders. On perusal of
Plaintiff No.3 Bhavish Modi original Laxmi Vilas Bank (Now taken over
by DBS Bank), Fort Branch, account’s statement for the period of
15.10.2016 to 7.2.2017 at Exh.17 reveals that an amount of Rs.
7,00,000/- is debited from the account of the plaintiff No.3 in the
account of A.K.Traders.
9. On perusal of Exh.14,15,16 & 17, it reveals that plaintiffs from
time to time have paid an amount of Rs.1,74,000/-, Rs.2,00,000/-
Rs.2,00,000/- Rs.1,00,000/-Rs.7,00,000/- and Rs.39,000/- by cash
totalling Rs. Rs.14,13,000/-. When the plaintiffs requested the
defendants to repay the amount, he executed three Demand Promissory
Notes on 7.9.2018.
10. On perusal of Demand Promissory Notes at Exh.19 dated
7.9.2018 reveals that defendant executed Demand Promissory Notes for
Rs.6,46,875/-, Rs.25,46,450/- and Rs.13,34,170/- alongwith 3%
interest per month respectively in the name of Plaintiffs. On perusal of
Demand Promissory Notes at Exh.19, it further reveals that Defendant
agreed to repay the amount mentioned in Demand Promissory Notes
alongwith interest at the rate of 3% per month.
11. Letter dated 20.7.2024 issued by HDFC bank at Exh.20, letter
dated 6.7.2024 issued by Bank of India at Exh.21, letter dt.6.7.2024
issued by DBS Bank at Exh.22 and letter dated 6.7.2024 issued by IDBI
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S.C.Suit No. 394/2019. 8 Ex-parte Judgment.
Bank at Exh.23 also reveal that bank has confirmed transaction
mentioned in Exh.20,21,22,23. The defendant failed to repay the
amount to the plaintiffs as agreed by him and issued Demand
Promissory Notes. The plaintiffs have proved that an amount of
Rs.14,13,000/- is paid to the defendant from time to time through bank
and bank statements placed on record by the plaintiffs reveal the
payment of Rs.14,13,000/- to the defendant from the account of
Plaintiff No.1, Plaintiff No.2 and Plaintiff No.3 respectively. The
defendant by executing demand promissory Notes has clearly accepted
his liability to repay the amount. The defendant neither appeared since
11.10.2023 nor filed his written statement and therefore, matter
proceeded ex-parte against him. The defendant neither cross examined
the plaintiffs nor challenged the execution of Demand Promissory Notes
by him. Therefore, plaintiffs by examining Plaintiff No.1 Vijaykumar
Modi and placing documentary evidence on record have proved that
they had given an amount of Rs.14,13,000/- to the defendant from time
to time and defendant by executing three Demand Promissory Notes has
failed to pay the said amount. Hence, the plaintiffs are entitled to
recover principal amount of Rs.14,13,000/- from the defendant.
12. On perusal of demand Promissory Notes, it appears that the
defendant agreed to repay the principal amount alongwith interest at
the rate of 3% per month. Considering friendly relationship between
the plaintiffs and the defendant and considering current interest rate of
the Bank, I find it just and proper to grant interest at the rate of 12%
p.a. from 7.9.2018 till today i.e. 25.11.2025. The plaintiffs are
therefore, entitled to recover an amount of Rs.14,13,000/- from the
defendant alongwith interest at the rate of 12% p.a. from 7.9.2018 till
today i.e. 25.11.2025. The plaintiffs are also entitled for future interest
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S.C.Suit No. 394/2019. 9 Ex-parte Judgment.
on the amount of Rs.14,13,000/- at the rate of 6% per annum from the
date of decree till full and final realization of the amount. Therefore, I
answer point No.1 & 2 accordingly. In the result, following order is
passed :-
ORDER
1. Suit is ex-parte decreed with costs as under:-
(i) The defendant shall pay an amount of Rs.14,13,000/- (Rupees
Fourteen Lakhs Thirteen Thousand Only) to the plaintiffs alongwith
interest at the rate of 12% per annum from 7.9.2018 till today i.e.
25.11.2025.
(ii) The defendant shall pay future interest on amount of
Rs.14,13,000/-(Rupees Fourteen Lakhs Thirteen Thousand Only) to the
plaintiffs at the rate of 6% p.a. from the date of decree till full and final
realization of the amount.
2. Decree be drawn up accordingly.
3. Summary Suit No. 394 of 2019 stands disposed of.
(Dictated and pronounced in Open Court.)
(MRS. MADHURI M. DESHPANDE)
Date : 25.11.2025. Judge, City Civil Court,
Mumbai.
Dictated on : 25.11.2025.
Transcribed on : 1.& 2.12. 2025
Signed on : 2.12.2025
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S.C.Suit No. 394/2019. 10 Ex-parte Judgment.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time:3.12.2025 at 2.02 p.m.
Name of the Judge HHJ MRS. M.M.DESHPANDE
Court No.66
Date of Pronouncement of Order 25.11.2025
Order signed by P.O. on 2.12.2025
Order uploaded on 3.12.2025
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