Final Order 1

Order Details: Copy of Judgment
Pdf Text: Filed on : 10.01.2019
Registered on : 08.02.2019
Decided on : 15.02.2020
Duration : Yr-01 Mth-00 Ds-06
THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.264 OF 2019
(CNR NO.MHCC01-000450-2019)
Exhibit-22
1. Manvendra Himanshu Kane,
Address : J-149, Lokmanya Nagar,
T.H. Kataria Marg, Mahim, Mumbai – 400016.
2. Himanshu Wasudeo Kane,
Address : J-149, Lokmanya Nagar,
T.H. Kataria Marg, Mahim, Mumbai – 400016. …Plaintiffs
..Versus..
Shashi Gopal,
having office and c/o at Sikri & Grover,
1st floor, Room No.19, Singh Chambers,
154 Bora Bazar, Mumbai – 400 001.
And
Residing at : 4, Crescent Hill,
Dr. S Brampton, ON, Toronto,
Canada L6S 2P3
and having email address as
gopal.shashi@gmail.com ...Defendant
SUIT FOR RECOVERY OF Rs.8,36,500/-
Appearance:-
Mr. Rahul Kadam, Advocate for the Plaintiff.
Exparte against Defendant.
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2 Sum .Suit No. 264 of 2019
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
(C.R. NO.59).
DATE : 15th February, 2020.
: 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 No.1 and 2 are advocate and solicitors of law firm
namely W.S. Kane and Company. The defendant is an Indian national
residing at Canada. The defendant borrowed amount of Rs.5,00,000/-
from the plaintiff as handloan out of cordial relations. In the month of
April 2015, defendant stated that he needs the said handloan to obtain
permanent residence card in Canada and he will repay the same to the
plaintiffs. The said amount of Rs.5,00,000/- was given to the defendant
by transferring the said amount to the account of defendant from the
account of plaintiff no.1. Inspite of various requests, correspondence
made by the plaintiffs, defendant failed to pay amount of Rs.5,00,000/-
to the plaintiff. Hence, plaintiff is constrained to file the suit for
recovery of the said amount. The total suit claim of the plaintiff for
Rs.8,36,500/-.
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 :-
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3 Sum .Suit No. 264 of 2019
POINTS FINDINGS
1 What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.5,00,000/- with
interest
@ 10 % per annum.
2 What order and decree? As per final order.
R E A S O N S
5. Plaintiff has filed his affidavit at Exhibit-7. In order to prove the
case of the plaintiff filed following documentary evidence.
Exhibit.
No.
Description of documents
8 ICICI Bank Statement of the plaintiff no. 1 for the month of
April 2015.
9 Original Certificate issued by ICICI Bank confirming the
transfer of Rs. 5,00,000/- from the ICICI Bank account of
Plaintiff No.1 to Bank of Baroda bank account of defendant.
10 Copy of email addressed by the defendant dated 15.04.2015.
11 Copy of email addressed by the defendant dated 15.04.2015.
12 Copy of email addressed by the defendant dated 11.06.2015.
13 Copy of email addressed by the defendant dated 30.07.2015.
14 Copy of email address by the defendant dated 13.01.2016.
15 Copy of email addressed by the plaintiff dated 24.04.2018.
16 Copy of email addressed by the defendant dated 30.04.2018.
17 Copy of email addressed by the plaintiffs dated 12.06.2018.
18 Copy of email addressed by the defendant dated 12.06.2018.
19 Copy of email addressed by the plaintiffs dated 27.12.2018.
20 Particulars of claim dated 10.01.2019.
21 Original certificate under section 65B of Indian evidence Act,
1872 dated 13.11.2019.
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4 Sum .Suit No. 264 of 2019
AS TO POINT NO.1 :-
6. All the documents produced by the plaintiff at Exhibit-8 and 21
go to establish that plaintiffs have given amount of Rs.5,00,000/ to the
defendant as loan. The documents further prove that the amount of
Rs.5,00,000/- is due and payable to the plaintiffs from defendant
towards the loan amount. The defendant has failed to repay the said
loan amount to the plaintiffs. The documents at list Exhibits-8 to 21 go
to establish that the defendant is liable to pay Rs.5,00,000/- to the
plaintiffs on the date of filing of the suit towards the said loan amount
and therefore, the defendant has failed to repay the said loan amount to
the plaintiff. In this background, it is held that plaintiffs are entitled to
recover sum of Rs.5,00,000/- from the defendant.
7. The plaintiffs have 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
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.5,00,000/-. 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
plaintiffs are entitled to recover Rs.5,00,000/- from the defendant with
interest at the rate of Rs.10% per annum from the date of filing of the
suit till its realization. Plaintiffs are also entitled to recover cost of the
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5 Sum .Suit No. 264 of 2019
suit from defendants. Hence, in answered to point No.2, I proceed to
pass the following order.
: O R D E R :
1. The defendant shall pay Rs.5,00,000/- (Rs. Five Lakhs
Only) to the plaintiffs with interest at the rate of 10%
per annum from the date of filing of the suit till its
realization.
2. Defendant 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:15.02.2020 (Ms. S. G. Shaikh)
Ad-Hoc Judge,
City & Civil Court,
Gr. Bombay
Typed on : 15.02.2020.
Signed on : 15.02.2020.
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6 Sum .Suit No. 264 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
15.02.2020 5.45 p.m. Mr. Tushar P. Kuwar
Name of the Judge H.H.J. SABIHA G. SHAIKH.
Ad-hoc Judge.
(Court Room No.59)
Date of pronouncement of Order 15.02.2020
Order signed by P.O. on 15.02.2020
Order uploaded on 15.02.2020
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