Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010003292019 Presented on : 08-01-2019
Registered on : 01-03-2019
Decided on : 12-09-2022
Duration : Y M D
03 08 04
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.327 OF 2021
(SUMMARY SUIT NO.354 OF 2019)
Ex.12
Dilipkumar Atmaram Nagpal
Indian Inhabitant of Bombay,
Age: 56 years, Having his address
at 405A, Neelkanth, 98,
Marine Drive, Mumbai400002. ..Plaintiff
VERSUS
1. Onus Enterprise Private Limited
A Company registered under the Companies
Act 1956, having its registered address at:
Office No. 528, Grohitam Building, Sector 19C,
Vashi, New Mumbai 400 705.
2. Mr.Kalpesh M Shah, an adult,
Age: not known, Occ: Business
Having address at Flat no 1501,
Moraj Casa Grand, Sector 17, Plot No.57,
Koperkhairane, New Mumbai400 709.
3. Mrs. Trupti K Shah, an adult,
Age: not known, Occ: Business
-- 1 of 8 --
2
Having address at Flat no 1501,
Moraj Casa Grand, Sector 17, Plot No.57,
Koperkhairane, New Mumbai400 709. ..Defendants
Ld. Advocate Bhargavi Rawal for plaintiff
DefendantsExparte.
JUDGMENT
(Delivered on 12th day of September, 2022)
Suit is for recovery of an amount of Rs.10,86,500/
along with further interest.
Plaintiff's case, may be summarized, as under:
2. Defendant No.1 is a company. Defendant Nos.2 and
3 are the directors of defendant No.1company. Defendants
requested plaintiff for loan of Rs.15.50 lacs. On 27/12/2017,
plaintiff paid an amount of Rs.8 lacs to defendant No.1company
by cheque bearing No.001210 drawn on Bank of Baroda, Marine
Drive branch. On 01/03/2018, plaintiff paid an amount of Rs.7.5
lacs to defendant No.1company by cheque bearing No.001263
drawn on Bank of Baroda, Marine Drive branch. For the valuable
consideration received by defendants, defendant Nos.2 & 3 drew
demand bills of exchange dated 27/12/2017 and 01/03/2018 for
Rs.8 lacs and Rs.7.5 lacs respectively in favour of plaintiff. Both
these bills of exchange were accepted by defendant Nos.2 and 3.
-- 2 of 8 --
3
3. Defendant No.1 paid interest towards first bill of
exchange upto 23/08/2018 and for second bill of exchange upto
27/08/2018. As per mutual agreement, defendant No.1 started
making repayment of principal amount in installments. Towards
the bill of exchange dated 27/12/2017, defendant No.1 paid an
amount of Rs.4 lacs and towards the bill of exchange dated
01/03/2018, defendant No.1 paid an amount of Rs.1.25 lacs.
After giving due credit to the payments made by defendants, an
amount of Rs.10,25,000/ remained outstanding against
defendants. Plaintiff presented these bills of exchange for
encashment to defendant Nos.2 and 3, but, defendants
dishonoured the bills of exchange and promised to pay balance
payment within short time. Defendant No.1 issued two cheques
dated 04/09/2018 of Rs.4 lacs and Rs.6.25 lacs towards the
repayment of outstanding amount of Rs.10.25 lacs. Defendant
No.1 assured to honour these two cheques. Plaintiff presented
these cheques for encashment. However, both these cheques
were dishonoured due to insufficient funds in the account of
defendant No.1. On 21/09/2018, plaintiff issued notice, through
his advocate, calling upon defendants to pay outstanding amount
along with interest. However, defendants failed to pay the
outstanding amount. Hence, this suit.
4. As per Service Affidavit Ex.5, defendant No.3 was
duly served with writ of summons and as per Service Affidavit
Ex.7, defendant Nos.1 and 2 were deemed to be served with writ
-- 3 of 8 --
4
of summons. But, they failed to tender their appearance.
Therefore, suit proceeded without appearance of defendants by
order dated 01/12/2021. On 30/06/2022, plaintiff tendered
claim affidavit and original documents and matter was adjourned
for arguments on 02/07/2022. On 02/07/2022, defendant No.1
appeared, through advocate, and sought time for taking steps. On
13/07/2022, defendant Nos.2 and 3 have taken out Notice of
Motion No.2504 of 2022 praying to set aside order dated
01/12/2021. Said notice of motion was dismissed on
19/08/2022. On 08/09/2022, plaintiff by filing application at
Ex.11, prayed for withdrawal of the suit unconditionally against
defendant No.1company on the ground that insolvency
proceedings are admitted against defendant No.1company. As
per order dated 08/09/2022, plaintiff was permitted to withdraw
the suit as against defendant No.1company unconditionally and
suit proceeded against defendant Nos.2 and 3.
5. Heard Ld. advocate for plaintiff.
6. 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 an
amount of Rs.10,86,500/ is
outstanding against defendant
Nos.2 and 3?
Proved
2. What order? Suit is partly decreed as
per final order.
-- 4 of 8 --
5
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff has filed
claim affidavit at Ex.8 and original documents below list Ex.9.
8. PW1 Dilipkumar Atmaram Nagpal reiterated all the
facts pleaded in the plaint in his claim affidavit. Plaintiff claims
that an amount of Rs.15.50 lacs was advanced to defendant
No.1company. Plaintiff has filed on record letter dated
27/12/2017. As per letter dated 27/12/2017 issued to plaintiff,
defendant No.1 requested for loan on bill of exchange facility for
business requirements. Plaintiff has filed on record bills of
exchange executed by defendant No.1company. Those bills of
exchange were accepted by defendant Nos.2 and 3. Bills of
exchange dated 27/12/2017 and 01/03/2018 were executed by
defendant Nos.2 and 3 in the capacity as directors of defendant
No.1company. Defendant Nos.2 and 3 have also accepted both
these bills of exchange in their individual capacity. Defendant
No.1company is a separate legal entity apart from defendant
Nos.2 and 3. Defendant Nos.2 and 3 have accepted both these
bills of exchange in their individual capacity, therefore, both of
them would be liable to honour both these bills of exchange.
9. The documents filed on record further show that
defendant No.1company has given repayment schedule on
-- 5 of 8 --
6
27/12/2017 and 01/03/2018. Plaintiff has also filed on record
certified copy of the Accounts statement to show that he has made
payment to defendants. Thus, plaintiff's claim is well supported
by documents filed on record. Therefore, it needs to be accepted.
Plaintiff has claimed interest at the rate of 18% p.a. on the
outstanding amount. Suit is based upon dishonour of bills of
exchange, therefore, plaintiff is entitled to get interest at the rate
of 18% p.a. on the outstanding amount. By applying interest at
the rate of 18% p.a. on principal outstanding amount of
Rs.10,25,000/, plaintiff claimed an amount of Rs.10,86,500/.
He is entitled for the same. From the material produced before
the Court, it is proved that an amount of Rs.10,86,500/ is
outstanding against defendant Nos.2 and 3. Point No.1 is
answered accordingly.
10. Plaintiff claimed interest at the rate of 18% p.a. from
the date of suit till its realization. Taking into consideration, the
nature of transaction, it would be just and proper to grant
interest at the rate at which moneys are lent by nationalized
banks in relation to Commercial transactions. Considering the
rate of interest at which moneys are lent by nationalized banks in
relation to commercial transactions, plaintiff is entitled to the
interest at 12% p.a. from the date of filing of suit till its
realization. In the result, following order:
ORDER
1. Commercial Suit No.327 of 2021 is partly decreed with costs.
-- 6 of 8 --
7
2. Defendant Nos.2 and 3 shall pay an amount of Rs.10,86,500/
(Rupees Ten Lacs Eighty Six Thousand Five Hundred only) along
with interest @ 12% p.a. on the principal amount of
Rs.10,25,000/ to plaintiff from the date of the suit till its
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.
12/09/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/09/2022
Transcribed on : 13/09/2022
Signed on : 13/09/2022
-- 7 of 8 --
8
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”
14.09.2022 at 04.10 p.m.
UPLOAD DATE AND TIME
(Mrs.Tanushree C.Kamble)
Stenographer(HG), COURT
NO.14
Name of the Judge HHJ SHRI S.U. Hake
(COURT NO.14)
Date of pronouncement of
judgment/order
12.09.2022
Judgment/order signed by P.O. on 13.09.2022
Judgment/order uploaded on 14.09.2022
-- 8 of 8 --