Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010008682020 Presented on 07/01/2020
Registered on 22/01/2020
Decided on 03/11/2025
Duration 05Y: 09M: 27D
Exhibit 05
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 117 OF 2020
Ashok Champalal Jain ]
An adult Indian Inhabitant ]
Trading in the name and style and as ]
Proprietor M/s. Sanjayleen Textile ]
Industries (India), having address ]
at 316, Swadeshi Market Building, ]
1st Floor, R. No. A, Kalabadevi Road, ]
Mumbai - 400 002. ]...Plaintiff
VERSUS ]
Sandeep M. Dhanuka ]
Trading in the name of Nandlal ]
Corporation, having address at 354, ]
Kalyan Bhawan, Ground Floor, ]
Kalbadevi Road, Mumbai - 400002. ]...Defendant
Appearance:-
Ld. Adv. Suresh Jain for plaintiff.
Ld. Adv. Jagdish Nagar for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 03/11/2025
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JUDGMENT
( Dictated and pronounced in open Court)
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil procedure, 1908 (C.P.C.), by the plaintiff for recovery of an amount
of Rs. 2,62,000/- including interest and prayed for further interest from
the defendant.
Brief facts of plaintiff’s case may be summarized as under :
02] As per plaintiff, he is proprietor of Sanjayleen Textile
Industries (India) and doing business at the address mentioned in title
cause. Defendant is doing business of textile goods under name and
style of Nandlal Corporation. Defendant was in need of financial
assistance for his business purpose and hence requested to advance an
amount. Defendant agreed to repay same with interest at the rate of
12% p.a. Therefore, plaintiff advanced an amount of Rs. 2,00,000/- by
cheque bearing No. 148389 dated 03/05/2017, drawn on Cosmos
Co-op. Bank Limited to the defendant. Further, after several request to
repay said amount to the defendant, he issued four cheques bearing
No. 597976 dated 31/12/2017 for Rs. 50,000/-, No. 597974 dated
30/11/2017 for Rs.50,000/-, No.597975 dated 15/12/2017 for
Rs. 50,000/- and No.597977 dated 15/01/2018, total amounting to
Rs. 2,00,000/- to discharge his liability. Plaintiff had not deposited said
cheques at the request of defendant, as he had assured that he would
pay said amount either by demand draft or RTGS. Thus, defendant
failed to make payment and allowed validity of cheque to expire and
prevented plaintiff from encasing said cheques. Therefore, plaintiff
issued notice dated 29/03/2019 through advocate and called upon
defendant to make payment of outstanding amount. The defendant
falsely replied on 04/04/2019 to said notice to which plaintiff has
rejoined on 27/04/2019 and denied contents therein. Thus, plaintiff is
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3 Sum Su No.117/2020
entitled for an amount of Rs. 2,00,000/- towards principal and
Rs. 62,000/- towards interest at the rate of 12% p.a., total amounting to
Rs. 2,62,000/- from defendant. Hence, this suit.
03] Defendant appeared in the matter. Thereafter, plaintiff has
taken out Summons for Judgment No.39/2020, which came to be
decided on 19/03/2025 and defendant was granted conditional leave to
defend the suit with direction to deposit an amount of Rs. 2,00,000/-
within 60 days. Defendant has failed to comply the said order. The
plaintiff has filed Non Deposit Certificate vide Exh. 4 on record.
04] The plaintiff has relied on following documents filed vide
list Exh. 2.
Sr.
No. Exhibit Particulars
1 Exh. 2/1 Statement of Account.
2 Exh. 2/2 Original cheques.
3 Exh. 2/3 Office copies of Advocate Notice.
4 Exh.2/4 Reply letter to advocate of defendant.
5 Exh.2/5 Rejoinder letter of advocate of plaintiff.
05] Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
which my findings are recorded for reasons given below.
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.2,62,000/-
from defendant ? If yes, at what rate
of interest ?
Partly yes, the plaintiff is
entitled to simple interest on
the amount of Rs. 2,00,000/-
at the rate of 7% p.a. from
07/01/2020 i.e. the date of
filing the suit till its full
realization.
2. What order and decree? As per final order.
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R E A S O N S
As to Points No. 1 and 2:-
06] Perused plaint and documents on record. Heard Ld.
counsel for the plaintiff. As discussed above, defendant has appeared in
the matter therefore, plaintiff has taken out summons for judgment
No.39/2020. The summons for judgment came to be decided on
19/03/2020 and defendant was granted conditional leave to defend the
suit subject to payment of Rs. 2,00,000/-. However, defendant failed to
comply said order of summons for judgment. Therefore, as per Order
37, Rule (3)(6)(b) of C.P.C., plaintiff is entitled for the judgment.
07] As per plaintiff, as defendant was in need of financial
assistance for his business purpose on his request advanced an amount
of Rs. 2,00,000/- by cheque bearing No.148389 dated 03/05/2017,
drawn on Cosmos Co-op. Bank Limited to the defendant. Further,
defendant had encased it. The plaintiff has filed copy of his bank
statement on record vide list Exh. 2/1 however, it is not supported by
requisite certificate. Therefore, it cannot be read in in evidence. It is the
contention of the plaintiff that defendant had agreed to repay the said
amount with interest at the rate of 12% p.a. It is pertinent to note that
plaintiff has not filed any written agreement between them to that
effect on record.
08] Plaintiff has contended that after several request to repay
said amount to the defendant, he issued four cheques of Rs. 50,000/-
each bearing Nos. 597976, 597977, 597974 and 597975 to discharge
his liability. Plaintiff has filed said original cheques on record vide list
Exh. 2/2. On perusing said documents, it appears that it supports the
contention of the plaintiff. It is further contention of the plaintiff that
plaintiff had not deposited said cheques at the request of defendant, as
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he had assured that he would pay said amount either by demand draft
or RTGS. However, defendant failed to make payment and allowed
validity of cheque to expire and prevented plaintiff from encashing said
cheques. Therefore, plaintiff issued notice dated 29/03/2019 through
advocate and called upon defendant to make payment of outstanding
amount. Plaintiff has filed office copy of said notice on record vide list
Exh. 2/3. As per plaintiff the defendant has falsely replied on
04/04/2019 to said notice. Plaintiff has filed said reply on record vide
list Exh. 2/4. On perusing said reply, it appears that defendant has
denied that he has borrowed an amount of Rs. 2,00,000/- from the
plaintiff and he agreed to repay said amount with interest at the rate of
12% p.a. Further, he has denied that he had issued said four cheques in
discharge of liability. It is pertinent to note that though, defendant has
contended that he had not issued said cheques to the plaintiff however,
he has not explained how said cheques came in the custody of plaintiff.
Further, it is contention of plaintiff that he had rejoined on 27/04/2019
and denied contents therein. The plaintiff has filed office of said
rejoinder to support his contention. It is pertinent to note that
defendant was given opportunity to defend the suit by depositing an
amount of Rs. 2,00,000/- in view of order dated 19/03/2025 passed in
Summons for Judgment No. 39/2020. However, as discussed above,
defendant failed to comply said order. Further, plaintiff has
substantiated his case on the basis of original documents filed on
record. Defendant has not contested the suit. Therefore, evidence of
plaintiff has remained unchallenged. Therefore, I am of the view that
plaintiff has proved that he is entitled for an amount of Rs. 2,00,000/-
towards principal. So far as interest at the rate of 12% p.a. on said
amount is concerned, plaintiff has failed to prove that defendant has
agreed for interest at the rate of 12% p.a.
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09] So far as further interest is concerned, plaintiff has claimed
interest at the rate of 12% p.a. However, I am of the view that said rate
of interest is excessive than rate of interest of nationalized banks.
Further, cheques were issued in the year 2017 and plaintiff has issued
notice in the year 2019 and filed suit in the year 2020. Therefore, I am
of view it would be just and proper to grant interest at the rate of 7%
p.a. from date of filing of suit till its realization. Hence, I answer point
No. 1 in partly in affirmative. In the result, answer to point No. 2, I
proceed to pass the following order.
O R D E R
1] The Summary Suit No. 117 of 2020 is partly decreed with costs.
2] The defendant shall pay to the plaintiff an amount of
Rs. 2,00,000/- (Rupees Two Lakhs only).
3] The plaintiff is entitled to simple interest on the amount of
Rs. 2,00,000/- at the rate of 7% p.a. from 07/01/2020 i.e. the
date of filing the suit till its full realization.
4] The plaintiff may be entitled to get refund of the court-fees paid,
if any, provided for in rules.
5] The decree shall be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
Date: 03/11/2025 C.R.No.81
Dictated on: 03/11/2025
Corrected & signed on: 04/11/2025
`
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
04/11/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
03/11/2025
JUDGMENT/ORDER signed by P. O. on 04/11/2025
JUDGMENT/ORDER uploaded on 04/11/2025
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