Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum. Suit No. 163 of 2019
Presented On : 24.01.2019
Registered On : 24.01.2019
Delivered On : 15.01.2020
Duration : 00Y. 11M. 21D.
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.163 OF 2019
(CNR NO. MH CC010001732019)
Exhibit 11
Akshar Rameshkumar Jain.
Age.:33 years, Occ.: Nil,
Address: 12, Kakad Wadi,
Ground Floor, Mogre Building,
V.P.Road, Bombay – 400 004. ….Plaintiff
..Versus..
1. Mangesh Arjun Kadre.
Age.: Not known, Occ.: Service,
Address.: Rahyabai Chawl, Room No.1,
Ramnagar, M.D. Road, Kandivali (East)
Mumbai – 400 101.
2. Dattaram R. Sonar.
Age.: Not known, Occ.: ,
Address.: B21Z, Post Colony, Sahar Road,
Andheri (E), Mumbai – 400 099. ....Defendants.
SUIT FOR RECOVERY OF Rs.50,000/.
Appearance:
Mr.Dileep Sutale, Advocate for the Plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59)
DATE : 15 th January, 2020
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2 Sum. Suit No. 163 of 2019.
: J U D G M E N T :
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
2. The facts of the suit are summarized as under :
The plaintiff and defendant are residents of Mumbai and known to
each other. Defendant no.1 drew a Bill of Exchange dated 12th
December, 2017 and same accepted by the defendant no.2 and
delivered to the plaintiff. The plaintiff paid Rs.50,000/ to the
defendant no. 2 as per Bill of Exchange. On 11th January, 2018
plaintiff presented Bill of Exchange and demanded his money from
defendant no.2. But, defendant no. 2 dishonoured the same by non
payment. Thereafter, plaintiff informed to defendant no.1 about the non
payment of defendant no.1 and demanded from defendant no.1 of his
dues but he also failed and neglected to pay dues of plaintiff. Inspite of
demands, reminders of plaintiff and receipt of the legal notice dated
08th October, 2018, both defendants are failed to pay dues. Hence,
plaintiff is constrained to file the suit for recovery of the said amount.
The total suit claim of the plaintiff for Rs.50,000/
3. The suit summons were duly served on the defendant but he
failed to appear. Hence, suit is posted for judgment as per order XXXVII
Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :
POINTS FINDINGS
1 What is due and payable from the
defendants to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of Rs.50,000/
at the rate of 10 % per
annum.
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3 Sum. Suit No. 163 of 2019.
2 What order and decree? As per final order.
R E A S O N S
5. The witness Rameshkumar Babulal Shah, Constituted Attorney of
plaintiff has filed his affidavit at Exhibit6. In order to prove the case of
the plaintiff filed following documentary evidence.
Exhibit.
No.
Description of
documents
Date
Exhibit8 Bill of Exchange of
Rs.50,000/.
12/12/2017
Exhibit 9 Demand Letter issued by
plaintiff's advocate along
with original postal record
and acknowledgment.
08/10/2018
AS TO POINT NO.1 :
6. All the documents produced by the plaintiff at Exhibit8 and 9
goes to establish that plaintiff has given amount of Rs.50,000/ to the
defendants as loan. The documents further prove that the amount of
Rs.50,000/ is due and payable to the plaintiff from defendants towards
the loan amount. Defendants have failed to repay the said loan amount
to the plaintiff. The documents at list Exhibits 8 and 9 goes to
establish that the defendants are liable to pay Rs.50,000/ to the
plaintiff on the date of filing of the suit towards the said loan amount
and therefore the defendants have failed to repay his loan amount to
the plaintiff. In this background, it is held that plaintiff is entitled to
recover sum of Rs.50,000/ from defendants.
7. The plaintiff has claimed 18% per annum on the principle
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial
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4 Sum. Suit No. 163 of 2019.
and there is no contract pertaining to the same between the parties. In
the present case the transaction is commercial one and there is no such
contract existing between the parties as to the rate of interest which
shall be levied. Therefore, the transaction is a simple handloan
transaction and rate of interest @ 10% per annum would be just and
proper to be awarded on the principle sum adjudged i.e. amount of
Rs.50,000/. Hence, point No.1 is answered in the affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point No.1 it is held
that plaintiff is entitled to recover Rs.50,000/ from the defendant with
interest at the rate of Rs.10% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from defendants. Hence, in answered to point No.2, I proceed to pass
the following order.
: O R D E R :
1. Defendant no. 1 & 2 shall jointly or severally pay
Rs.50,000/ (Rupees Fifty Thousand only) to the plaintiff
with interest at the rate of 10% per annum from the date
of filing of the suit till its realization.
2. Defendants do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per rule.
Date:15.01.2020 (Ms. S. G. Shaikh)
AdHoc Judge,
City & Civil Court,
Gr. Bombay
Typed on : 15.01.2020
Signed on : 15.01.2020
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5 Sum. Suit No. 163 of 2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
18.01.2020 04.30 p.m. Mrs. P.R.Wagh
Name of the Judge H.H.J. Sabiha.G.Shaikh.
Adhoc Judge.
(Court Room No.59)
Date of pronouncement of Order 15.01.2020
Order signed by P.O. on 15.01.2020
Order uploaded on 18.01.2020
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