Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010009402019
Presented on : 24/01/2019
Registered on : 06/03/2019
Decided on : 19/04/2022
Duration : Y M D
03 02 25
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.993 OF 2021
(S.C. SUIT NO.619 OF 2019)
(Ex.11)
Smt. Vijaya Vishwanath Divekar
Age: 85, Indian Inhabitant residing at
1201, 12th Floor, Plot no. 822,
Avarsekar Heights, Dr. Annie Besant Road,
Worli Naka, Worli, Mumbai 400 018. ..Plaintiff
VERSUS
1. Shri Suhas Madan, not known
Indian Inhabitant having his office
at 201, Shanti Place, Opp. John
School, Veer Sawarkar Marg,
Thane(West), 400 601, presently
in prison at Thane Madhyavarti
Karagruha, Thane400 604.
2. Aparna Karnik, not known
Indian Inhabitant having her office
at 201, Shanti Place, Opp. John
School, Veer Sawarkar Marg,
Thane(West), 400 601, presently
in prison at Thane Madhyavarti
Karagruha, Thane400 604. ..Defendants
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______________________________________________________
Ld. Advocate Lata Desai alongwith Dr.Pallavi D. for plaintiff.
Defendantsexparte.
______________________________________________________
ORAL ORDER
(Dated this 19th day of April, 2022)
Suit is for recovery of an amount of Rs. 76,69,080/
alongwith future interest at the rate of 18% p.a. from the date of
filing of the suit till it's realization.
Material avernments in the suit may be summarized as
under:
2. Plaintiff is a senior citizen. Defendants are directors
of M/s. Dreams Broking Pvt. Ltd. Defendants were doing business
as brokers and traders in shares. Plaintiff was holding shares of
19 companies. Those shares were deposited in demat account
maintained with Stock Holding Corporation of India. In May
2015, plaintiff came in contact with defendants. Defendants
personally assured plaintiff that they would safely trade plaintiff's
shares. Defendants persuaded plaintiff to open demat account
with their company. Relying upon the representations made by
defendants, plaintiff signed the forms submitted by defendants
and handed over those forms to defendants. In June2015,
defendants handed over a computer generated statement to
plaintiff to show that they have opened demat account of plaintiff
on 26/05/2015. In June2015, plaintiff paid an amount of Rs.7
lacs to defendants by cheque. Said cheque was encashed by
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defendants on 18/06/2015. Said amount was paid by plaintiff for
purchasing new shares. In July2015, plaintiff informed
defendants that she was not interested in purchasing new shares
and requested defendants to return the amount of Rs.7 lacs.
Defendants issued a cheque of Rs.7 lacs dated 18/11/2015 drawn
on ICICI bank. However, said cheque was dishonoured.
3. Plaintiff came to know that defendants have illegally
got transferred her shares to the account of their company.
Plaintiff requested defendants to return her shares. On
13/12/2015, Bombay Stock Exchange issued a public notice and
declared M/s. Dreams Broking Pvt. Ltd as a defaulter. On
30/01/2016, defendants came to the office of plaintiff and
assured to return Rs.7 lacs to plaintiff alongwith shares.
Accordingly, defendants executed an undertaking on stamp paper
of Rs.100/. Defendants acknowledged the liability to return the
shares of worth Rs.45,74,953.65/ and an amount of Rs.7 lacs
jointly and severally. However, defendants failed to return the
shares and to pay the amount of Rs.7 lacs. Plaintiff filed
Arbitration proceedings as per Byelaws of Bombay Stock
Exchange. Arbitrator passed a Award dated 19/06/2016 and
directed M/s. Dreams Broking Pvt. Ltd to return
Rs.52,74,953.65/ to plaintiff. That award is passed against M/s.
Dreams Broking Pvt. Ltd. However, said company has no assets.
Plaintiff is entitled to recover aforesaid amount from defendants
as defendants have given personal guarantee to plaintiff to return
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the said amount. Defendants failed to pay the amount as per
undertaking given on 30/01/2016. Hence, this suit.
4. Inspite of service of writ of Summons (Service
affidavit Ex.2), defendants failed to appear before the Court,
therefore, as per order dated 19/09/2021, suit proceeded exparte.
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. 76,69,080/ is
outstanding against defendant
Nos.1 & 2?
Proved
2. What order? Suit is decreed as per
final order.
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff filed her
claim affidavit at Ex.3. She placed reliance upon following
documents:
Ex.5 Statement of Account
Ex.6 colly Cheque along with cheque depositing slip and
cheque return memo
Ex.7 Statement of account of RBI bank
Ex.8 Undertakings executed by defendants
Ex.9 Certified copy of award
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Plaintiff filed evidence closing pursis at Ex.10.
8. Plaintiff in her evidence affidavit reiterated all the
facts pleaded in the plaint. Plaintiff testifies that she was holding
shares of 19 companies. Those shares were deposited in the
demat account maintained with Stock Holding Corporation of
India. In May2015, she came in contact with defendants.
Defendants asked plaintiff to open demat account in their
company. They assured plaintiff for safe trading of shares. On
being assured by defendants, plaintiff signed certain forms given
by defendants and handed over those forms to defendants.
9. PW1,Vijaya further testifies that in July 2015, she
paid an amount of Rs.7 lacs by cheque. The oral evidence of
plaintiff regarding payment of an amount of Rs.7 lacs is well
supported by the statement of account (Ex.5) which shows that
an amount of Rs.7 lacs was transferred to the account of
defendants' company on 18/06/2015. Plaintiff has filed on record
cheque of Rs.7 lacs issued by defendants. Said cheque was
dishonoured. As per statement of shares filed on record (Art.C),
plaintiff's shares were deposited with demat account maintained
at defendants' company. Thus, from the material placed before
the Court, it can be safely inferred that defendants got transferred
plaintiff's shares. Plaintiff also paid an amount of Rs.7 lacs for
purchasing new shares. The liability to pay amount of shares and
Rs.7 lacs taken from plaintiff, is fixed in the Arbitration
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proceedings, against defendants' company. Here, plaintiff is
claiming said amount from defendants personally on the ground
that she has directly dealt with defendants and defendants by
executing an undertaking Ex.8 assured to return the amount of
Rs.7 lacs alongwith interest and shares of Rs.45,74,953.65/.
However, defendants failed to pay the amount promised in
undertaking Ex.8. Thus, oral evidence adduced by plaintiff got
requisite support from the documents filed on record. Plaintiff
claimed value of the shares and amount of Rs.7 lacs paid to
defendants alongwith interest. As per particulars of claim, an
amount of Rs.76,69,080/ is outstanding against defendants. As
discussed supra, defendants failed to appear before the Court and
failed to contest suit claim. Plaintiff's claim remained
uncontroverted. Therefore, plaintiff is entitled to an amount of
Rs.76,69,080/ alongwith interest at the rate of 18% p.a. from the
date of filing of suit till it's realization. Point No.1 is answered
accordingly. In the result, following order:
ORDER
1. Commercial Suit No.993 of 2021 is decreed with
costs.
2. Defendants shall pay jointly and severally an amount
of Rs.76,69,080/ (Rupees Seventy Six Lacs Sixty Nine
Thousand and Eighty only) alongwith interest @ 18
percent p.a. on the principal outstanding amount of
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Rs.54,09,361/ to plaintiff from the date of the suit till
it's 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.
19/04/2022 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 19/04/2022
Transcribed on : 20/04/2022
Signed on : 22/04/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
22/04/22 at 05.15 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
19/04/22
Judgment and order signed by P.O. 22/04/22
Judgment/order uploaded on 22/04/22
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