Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.106/2018
Received on : 11.01.2018
Registered on : 24.01.2018
Decided on : 04.05.2019
Duration : Y M D
01 03 25
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 106 OF 2018
CNR NO.: MHCC010005132018
Dr. Narayanprasad Maheshwari
Aged : 77 years, Indian Inhabitant,
Residing at 303, Jeevan Vihar,
5, Manav Mandir Road, Malabar Hill,
Mumbai 400 006. ...Plaintiff
Versus
Shanti and Santosh Builders
a partnership firm registered under
Partnership Act, 1932 having their
Registered Office at Vijay Residency,
P/2, Chivda Galli, Lalbaug, Mumbai 400 012
and also at 55, Manjrekar Lane, Gandhi Nagar,
Dr. E. Moses Road, Worli, Mumbai 400 018
and operating their Office from 212A, 213A,
Commerce House, 140, Nagindas Master Road,
Fort, Mumbai – 400 023. ...Defendant
Appearances:
Advocate Mr. Ganesh Lambade for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 4th MAY, 2019.
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[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that by a letter of Allotment/Agreement
dated 28.12.2012 executed between him and the defendant on the
letter head of the defendant, it was agreed between the parties that the
defendant shall allot a residential premises admeasuring about 1075 sq.
ft. carpet area bearing No.2002 on the 20th floor in the proposed
building to be constructed by the defendant with the
permission/approval which may be granted by the concerned
authorities on the plot of land bearing New Survey Nos.1/2680 and
2/2680, having corresponding Cadastral Survey No.204 of Lower Parel
Division situate lying and being at Delisle Road Mumbai popularly
known as Ghulwala Chawl on the terms and conditions more
particularly set out in the said Letter of Allotment/Agreement.
2. Plaintiff has further stated that thereafter in or about 2nd June
2014 because of inability of the defendant to give possession of the
allotted premises to the him, the defendant by a Cheque No.000096
dated 20th June 2014 drawn on Bank of Baroda repaid a sum of
Rs.50,00,000/ to him. Thereafter, he kept insisting for the repayment
of the balance sum of Rs.30,00,000/. Plaintiff has further stated that
after much delay, the defendant issued a cheque bearing No.02/2031
dated 16.01.2015 drawn on Bank of Baroda a sum of Rs.15,00,000/
only. Plaintiff has further stated that from time to time he had called
upon the defendant to repay the said balance sum of Rs.15,00,000/
which remains unpaid till date.
3. Plaintiff has further stated that from time to time, he called upon
the defendant to pay the aforesaid sum of Rs.15,00,000/ together with
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interest due thereon. However, inspite of repeated demands made by
the plaintiff, the defendant failed and neglected to pay the aforesaid
amount. Therefore, plaintiff filed this suit.
4. Defendant failed to appear in the suit, therefore, suit has
proceeded exparte against defendant.
5. Heard the Ld. Advocate for the plaintiff.
6. 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
sum of Rs.32,95,500/ from
defendant along with interest @ 18%
p. a. on the sum of Rs.15,00,000/
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
7. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr. No. Exhibits Particulars
1. Exh.9 Original copy of said Letter of Allotment/Agreement
dated 28.12.2012 executed between plaintiff and
the defendant.
2. Exh.10 Copy of said letter dated 18th September 2017 of
Advocate Mr. Naimish Jhaveri addressed to the
defendant.
3. Exh.11 Original envelope returned back by the postal
authorities with the remark as “Not known”.
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AS TO POINT NOS. 1 AND 2:
8. Plaintiff has filed evidence of himself in the form of affidavit
below Exh.7 and he has stated in his evidence that by a letter of
Allotment/Agreement dated 28.12.2012 executed between him and the
defendant on the letter head of the defendant, it was agreed between
the parties that the defendant shall allot a residential premises
admeasuring about 1075 sq. ft. carpet area bearing No.2002 on the 20th
floor in the proposed building to be constructed by the defendant with
the permission/approval which may be granted by the concerned
authorities on the plot of land bearing New Survey Nos.1/2680 and
2/2680, having corresponding Cadastral Survey No.204 of Lower Parel
Division situate lying and being at Delisle Road Mumbai popularly
known as Ghulwala Chawl on the terms and conditions more
particularly set out in the said Letter of Allotment/Agreement.
9. Plaintiff has further stated that as per the clause 3(a) of the
terms of the said Letter of Allotment/Agreement, he on or about
28.12.2012 paid to the defendant a sum of Rs.80,00,000/ vide (i)
Cheque No.162 dated 22.06.2012 for Rs.20,00,000/, (ii) Cheque
No.163 dated 22.06.2012 for Rs.40,00,000/ and (iii) Cheque No.166
dated 26.06.2012 for Rs.20,00,000/, all drawn from his account with
the Bank of Baroda having its branch at Ridge Road, Mumbai, in favour
of the defendant.
10. Plaintiff has further stated that thereafter in or about 2nd June
2014 because of inability of the defendant to give possession of the
allotted premises to the him, the defendant by a Cheque No.000096
dated 20th June 2014 drawn on Bank of Baroda repaid a sum of
Rs.50,00,000/ to him. Thereafter, he kept insisting for the repayment
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of the balance sum of Rs.30,00,000/. Plaintiff has further stated that
after much delay, the defendant issued a cheque bearing No.02/2031
dated 16.01.2015 drawn on Bank of Baroda a sum of Rs.15,00,000/
only. Plaintiff has further stated that from time to time he had called
upon the defendant to repay the said balance sum of Rs.15,00,000/
which remains unpaid till date.
11. Plaintiff has further stated that he therefore by his Advocate Mr.
Naimish Jhaveri's letter dated 18th September 2017 called upon the
defendant to pay the said sum of Rs.15,00,000/ together with interest
at the rate of 18% per annum.
12. Plaintiff has adduced original copy of said Letter of
Allotment/Agreement executed between plaintiff and the defendant,
Copy of said letter dated 18th September 2017 of Advocate Mr. Naimish
Jhaveri addressed to the defendant and original envelope returned back
by the postal authorities on record as documentary evidence. The oral
evidence of plaintiff is corroborated by documentary evidence.
Defendant 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.32,95,500/ from defendant.
13. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.15,00,000/ 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.
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2. Defendant is directed to pay sum of Rs.32,95,500/ to plaintiff
along with interest @ 9% p.a. on the principal sum of
Rs.15,00,000/ 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: 04.05.2019. City Civil Court,
Gr. Bombay.
Dictated on : 04.05.2019
Transcribed on : 04.05.2019
Signed on : 04.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
3.06.2019 At 5:12 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
04.05.2019
Judgment/Order signed by P.O. on 04.05.2019
Judgment/Order uploaded on 03.06.2019
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