Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :16.01.2020
Registered On :05.02.2020
Decided on :15.01.2022
Duration : Y-02/M-00/D-01
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 166 OF 2020
CNR NO.- MHCC01-000716-2020
Exhibit -05
Sunil Nagu Jadhav
Age: 40 years.
Carrying business at Shantidoot Chawl,
Nagewadi, Smarat Ashok Nagar, Mukund
Nagar, P.L. Lokhande Marg, Chembur,
Mumbai- 400 089.
... Plaintiff
V/s.
Sabir A. Hameed Solkar
adult, working for gain with
B.M.C. Office, Water Yard, E.C. No. 669402,
P.C. No. 4328 Dept MS AEOC : L.B.S. Road,
Ghatkoper(W), Mumbai- 400 086 and
residing at B.M. C. Quarters, Room No. 5,
Unit no.7, Opp. Jalashay, Bhatwadi, Barve
Ngr, Ghatkoper (W), Mumbai- 400 084. ... Defendant
Appearance:-
Mr. Rajesh Patil Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 15/01/2022
-- 1 of 6 --
Summ. Suit No.166/2020
2
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff at Bombay advanced and lent to defendant he
sum of Rs.2,90,000/- on 10th January,2019 in cash to that defendant has
issued post dated cheque of Rs.2,90,000/- in favour of plaintiff. The
cheque was deposited to the Bank on 19th September, 2019 and the
same was dishonoured. Inspite of repeated request and demand, the
defendant failed and neglected to pay the loan amount. Hence, after
waiting for sufficient time, the plaintiff issued advocate’s letter dtd.
28.9.2019 calling upon the defendant to make the repayment of the
outstanding amount. However, the defendant failed to comply with the
letter. The due and payable amount against the defendant alongwith
18% interest is Rs.2,90,000/-. Said amount is not paid by the
defendant. Hence, plaintiff is constrained to file the suit for recovery of
the said amount.
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 :-
-- 2 of 6 --
Summ. Suit No.166/2020
3
POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendant as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.2,90,000/- with
interest
@ 18 % per annum
2 What order and decree? Suit is decreed.
R E A S O N S
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.04 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Dishonored Cheuqe of Rs.
2,90,000/- dated 13.9.2019
Exh. 4/1
2 Memo of dishonored dated
19.9.2019
Exh. 4/2
3 Notice of demand dated 28.9.2019 Exh.4/3
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded under
order XXXVII of C.P.C as the same is not contested by the defendant. The
plaintiff has to establish the entitlement for the monetary relief,
undoubtedly, as per the procedure laid down in order XXXVII C.P.C,
once the suit is not contested by the defendant, the plaintiff is entitled
for the relief claimed in the suit plaint. Here, the plaintiff has produced
above referred documents to substantiate his claim.
7. All the documents produced by the plaintiff at Sr.No.1 to 3 goes
to establish that plaintiff has given amount of Rs.2,90,000/-to the
defendant. The documents further prove that the amount of
-- 3 of 6 --
Summ. Suit No.166/2020
4
Rs.2,90,000/- is due and payable to the plaintiff from defendant
towards the amount. The defendant have failed to repay the said
amount to the plaintiff. The documents at Sr.No.1 to 3 goes to establish
that the defendant is liable to pay Rs.2,90,000/- to the plaintiff on the
date of filing of the suit towards the said amount. He failed to comply
with the demand letter. In this background, it is held that plaintiff is
entitled to recover sum of Rs.2,90,000/- from the defendant.
8. The plaintiff has claimed 18% per annum on the principal
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 contract
existing between the parties as to the rate of interest which shall be
levied. The agreed rate of interest is 18% p.a hence, I hold that, the
transaction being commercial one and the agreed rate of interest is @
18% per annum, said rate of interest of 18% p.a would be just and
proper to be awarded on the principal sum adjudged i.e. amount of
Rs.2,90,000/-. Hence, point No.1 is answered in the affirmative.
AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.2,90,000/- from the defendant
with interest on the amount of Rs.2,90,000/- at the rate of 18% 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
answer to point No.2, I proceed to pass the following order.
-- 4 of 6 --
Summ. Suit No.166/2020
5
O R D E R
1. The defendant shall pay Rs.2,90,000/- (Rs. Two Lakhs
Ninety Nine Thousand Only) to the plaintiff with interest
at the rate of 18% 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. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :15/01/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :15/01/2022
Typed on :15/01/2022
Signed on : 15/01/2022
-- 5 of 6 --
Summ. Suit No.166/2020
6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15.1.2021 04.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
15.1.2021
JUDGMENT/ORDER signed by
P.O.on
15.1.2021
JUDGMENT/ORDER uploaded on 15.1.2021
-- 6 of 6 --