Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.221/2019
Received on : 08.01.2019
Registered on : 01.02.2019
Decided on : 25.04.2019
Duration : Y M D
00 03 19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 221 OF 2019
CNR NO.: MHCC010003182019
Rameshkumar Babulal Shah
aged about 58 years,
of Bombay, an adult Indian inhabitant
having his address at 12, Kakad Wadi,
Ground Floor, Mogre Building, V.P. Road,
Bombay – 400 004. ...Plaintiff
Versus
1. Amina Kayum Shaikh
(Age not known)
an adult Indian inhabitant, working for gain
with Dawood Nursing Home, Nagpada
Junction, Mumbai – 400 008.
2. Kisan Prabhakar Sonule
(Age not known)
an adult Indian inhabitant, working for gain
with Bank of Baroda, Minara Masjid
Branch, Near Pydhoni, Mumbai – 400 003
and residing at 25/13, Kamgar Nagar, F,
New Prabhadevi Road, Mumbai – 400 025 ...Defendants.
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Appearances:
Advocate Mr. Dileep Satale for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 25th APRIL, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that for valuable consideration viz. a sum of
Rs.35,000/ received from him on 6 th November 2017 defendant No.1
drew a Bill of Exchange directing thereby defendant No.2 to pay on
Demand to him or Order at Bombay, a sum of Rs.35,000/. Plaintiff has
further stated that defendant No.2 accepted the Bill of Exchange and
delivered the same to him on the same day. Plaintiff has further stated
that on 6th December 2017, he presented the suit Bill of Exchange to
defendant No.2 and demanded from defendant No.2 the amounts due
thereunder. Defendant No.2 dishonoured the same by nonpayment.
Plaintiff has further stated that he thereupon immediately, informed
defendant No.1 about the dishonour of the suit Bill of Exchange by
defendant No.2 and demanded from defendant No.1 the said amount of
Rs.35,000. Defendant No.1 also failed and neglected to pay the said
amount of Rs.35,000/ and any part thereof.
2. Plaintiff has further stated that pursuant to the provisions of the
Negotiable Instruments Act and on account of dishonour of the suit Bill
of Exchange, he has become entitled to and the defendants have, jointly
and severally, become liable to pay the said amount of Rs.35,000/ and
interest at the rate of 18% per annum on the same from the date of
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dishonour. Plaintiff has further stated that he by his Advocate's letter
dated 23rd October 2018 recorded the above facts and called upon the
defendants to pay the said amount of Rs.35,000/ and accrued interest.
Plaintiff has further stated that defendants have duly received the said
letter. Plaintiff has further stated that the defendants have failed and
avoided to comply with the requisitions thereof, and have also not
controverted the contents of the said letter. Plaintiff has further stated
that in the premises aforesaid, there is due and payable by the
defendants, jointly and severally, a sum of Rs.41,783/ to the plaintiff,
in accordance with the particulars of claim. Therefore, plaintiff filed
this suit.
3. Defendant Nos. 1 and 2 failed to appear in the suit, therefore,
suit has proceeded exparte against them.
4. Heard the Ld. Advocate for the plaintiff.
5. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.41,783/ from
defendants along with future interest
@ 18% p. a. on the sum of
Rs.35,000/ from the date of filing of
the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
6. Plaintiff relied upon the following documents as documentary
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evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.9 Bill of Exchange dated 6th November 2017.
2. Exh.10 The Plaintiff's Advocates' letter dated 23rd
October 2018 alongwith the Courier records in
respect thereof.
AS TO POINT NOS. 1 AND 2:
7. Plaintiff has filed evidence of himself below Exh.7 in the form
affidavit and stated that he has filed the above suit against the
defendants abovenamed for recovery of Rs.41,783/ and for further
interest @ 18% p.a. or at such further rate of interest on the principal
amount of Rs.35,000/ from filing of the suit till realisation and costs of
the Suit in respect of the Bill of Exchange dated 6th November 2017. He
has further stated that the said Bill of Exchange was executed by
defendant No.1 and has been accepted by defendant No.2. He has
further stated that he presented the said Bill of Exchange on 6th
December 2017 to the defendants and the defendants dishonoured the
same. He has further stated that he therefore forwarded his Advocate's
letter dated 23rd October 2018 to the defendants and called upon them
to pay the said amount. The defendants failed to pay the said amount
and controvert the contents thereof.
8. Plaintiff has produced all the corroborating documents which are
Original Bill of Exchange and Plaintiff's Advocate letter alongwith
Courier records on record as documentary evidence. The oral evidence
of plaintiff is corroborated by documentary evidence. Defendants have
failed to challenge all the allegations in the plaint and evidence of
plaintiff. Therefore, plaintiff has proved that he is entitled to get sum of
Rs.41,783/ from both defendants jointly and severally.
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9. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
amount of Rs.35,000/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 and 2 are jointly and severally directed to pay
amount of Rs.41,783/ to plaintiff along with interest @ 9% p.a.
on the sum of Rs.35,000/ from the date of filing of the suit till its
realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 25.04.2019. City Civil Court,
Gr. Bombay.
Dictated on : 25.04.2019
Transcribed on : 25.04.2019
Signed on : 25.04.2019
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:6: Summary Suit No.221/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20.05.2019 At 1:58 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
25.04.2019
Judgment/Order signed by P.O. on 25.04.2019
Judgment/Order uploaded on 20.05.2019
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