Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.1166/2018
Received on : 25.09.2018
Registered on : 11.10.2018
Decided on : 24.06.2019
Duration : Y M D
00 09 00
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 1166 OF 2018
CNR NO.: MHCC010122432018
Vikram Balkishan Sahjwani,
Adult, Indian Inhabitant
of Bombay, aged 60 years the
Karta and Manager of Vikram B.
Sahjwani H.U.F. carrying
on business at 519, Kalbadevi
Road, Mumbai – 400 002. ...Plaintiff
Versus
1. SAPPHIRE LIFESCIENCES Pvt.
Ltd., a Company, Registered
under the Companies Act, 1956,
carrying on business at Plot
No.44 & 45, PTICEL, Boisar
Road, Palghar – 401 404.
And at
131, Manju Tower, 3rd Cross
Lane, Lokhandwala, Andheri
(West), Mumbai – 400 053.
2. Parag Shah, Adult, Indian
Inhabitant of Bombay, age and
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full name not known carrying on
business and residing at 131,
Manju Tower, 3rd Cross Lane,
Lokhandwala, Andheri (West),
Mumbai – 400 053.
3. Toral Shah, Adult, Indian
Inhabitant of Bombay, age and
full name not known carrying on
business and residing at 131,
Manju Tower, 3rd Cross Lane,
Lokhandwala, Andheri (West),
Mumbai – 400 053. ...Defendants
[The defendant Nos. 2 and 3 also
carry on business at Plot No.44
& 45, PTICEL, Boisar Road,
Palghar – 401 404, the address of
the defendant No.1]
Appearances:
Advocate Ms. Kavita S. Lalwani for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 24th JUNE, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that the defendant No.1 for valuable
consideration drew two Demand Bills of Exchange on the defendant
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No.2, in his favour, one Demand Bill of Exchange dated 15.10.2016 of
Rs.18,00,000/ and another Bill of Exchange dated 13.01.2017 of
Rs.18,00,000/. Plaintiff has further stated that the said Demand Bills of
Exchange were accepted by the defendant No.2 for payment. The
defendant No.3 has signed the said Demand Bills of Exchange as
Drawee in case of need thus the defendant No.3 has also taken the
liability to pay the amount.
2. Plaintiff has further stated that the said sum of Rs.36,00,000/ of
the Two Demand Bills of Exchange of Rs.18,00,000/ each was
advanced to the defendants by cheques the details of which are as
follows :
Date of
Cheque
Cheque No. Amount Name of Bank
15.10.2016 685313 Rs.18,00,000/ State Bank of India,
Kemps Corner Branch
13.01.2017 685325 Rs.18,00,000/ State Bank of India,
Kemps Corner Branch
3. Plaintiff has further stated that upon receipt of the said sum of
Rs.36,00,000/ by cheques, the defendants for valuable consideration
executed two Demand Bills of Exchange of Rs.18,00,000/ each, one
Demand Bill of Exchange dated 15.10.2016 and another Demand Bill of
Exchange dated 13.01.2017.
4. Plaintiff has further stated that the defendants have accordingly
paid discount by cheque on 15.10.2016 after deducting TDS of
Rs.38,000/ and by NEFT on 09.02.2017 after deducting TDS of
Rs.44,800/. Plaintiff has further stated that the defendants have made
part payments by cheques, issued in his favour towards Demand Bill of
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Exchange dated 15.10.2016 of Rs.18,00,000/ as follows :
Date of Cheque
of payment by
NEFT
Mode of
Payment
Amount Name of Bank
18.11.2016 Cheque
No.21025
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
16.12.2016 Cheque
No.21028
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
18.01.2017 Cheque
No.21031
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
21.03.2017 NEFT Rs.1,50,000/ Central Bank of India,
Dahisar Branch
5. Plaintiff has further stated that the defendants promised to pay
the balance sum of Rs.12,00,000/ of the Demand Bill of Exchange
dated 15.10.2016 and the sum of Rs.18,00,000/ of the Demand Bill of
Exchange dated 13.01.2017, within a short time. Plaintiff has further
stated that he thereafter on 04.10.2017, presented both the Demand
Bills of Exchange i.e. one Demand Bill of Exchange dated 15.10.2016
for the balance sum of Rs.12,00,000/ and another Demand Bill of
Exchange dated 13.01.2017 for sum of Rs.18,00,000/ to the defendant
No.2 and then to the defendant No.3 for payment but both the
defendant Nos. 2 and 3 dishonoured the said Demand Bills of Exchange
for payment of the sum of Rs.30,00,000/ by nonpayment and
promised to pay the amount within a short time.
6. Plaintiff has further stated that, he thereafter, then on
04.10.2017, presented both the Demand Bills of Exchange i.e. one
Demand Bill of Exchange dated 15.10.2016 for the balance sum of
Rs.12,00,000/ and another Demand Bill of Exchange dated 13.01.2017
for sum of Rs.18,00,000/ to the defendant No.1 for payment and the
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defendant No.1 towards repayment handed over to him, two
confirmation letters dated 04.10.2017 addressed to him, one letter
alongwith one cheque dated 04.12.2017, bearing No.021877 of
Rs.12,00,000/ drawn on Central Bank of India, Dahisar Branch,
Mumbai – 400 068, issued in his favour towards repayment of the
balance amount of the Demand Bill of Exchange dated 15.10.2016 and
another letter alongwith cheque dated 04.12.2017, bearing No.021878
of Rs.18,00,000/ drawn on Central Bank of India, Dahisar Branch,
Mumbai – 400 068, issued in his favour towards repayment of the
Demand Bill of Exchange dated 13.01.2017 and requested him to
present the said cheques for payment on 04.12.2017 and assured that
the said cheques will be honoured on presentment.
7. Plaintiff has further stated that he accordingly upon the
defendants instructions presented both the cheques for payment to the
defendant's Bankers through his Bankers i.e. HDFC Bank, but the said
cheques were dishonoured with a remark “Funds Insufficient” vide
intimation dated 15.12.2017. Plaintiff has further stated that thus the
defendant No.1 also dishonoured the said Demand Bills of Exchange for
payment of the sum of Rs.30,00,000/ by nonpayment and promised to
pay the amount within a short time.
8. Plaintiff has further stated that he thereafter on several occasions
called upon all the defendants to pay the said sum of Rs.30,00,000/
alongwith interest at the rate of 18% p.a., but all the defendants under
one pretext or the other avoided payment inspite of several promises.
Plaintiff has further stated that he ultimately by his Advocate's letter
dated 19.12.2017 called upon the defendants to pay the said balance
sum of Rs.30,00,000/ alongwith interest at the rate of 18% p.a. within
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48 hours from the receipt of the said letters. Plaintiff has further stated
that the defendants have neither replied to said letter nor paid the
amount up to this date. Therefore, plaintiff filed this suit.
9. Defendant Nos. 1 to 3 failed to appear in the suit, therefore, suit
has proceeded exparte against them.
10. Heard the Ld. Advocate for the plaintiff.
11. 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.35,00,000/ from
defendants alongwith interest @ 18%
p. a. on the sum of Rs.30,00,000/
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
12. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.9 Demand Bill of Exchange dated 15.10.2016 of
Rs.18,00,000/.
2. Exh.10 Demand Bill of Exchange dated 13.01.2017 of
Rs.18,00,000/
3. Exh.11 Plaintiff's Advocate's letter dated 19.12.2017 alongwith
Acknowledgements.
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AS TO POINT NOS. 1 AND 2:
13. Plaintiff has filed evidence of himself below Exh.6 in the form of
affidavit below Exh.6 and he has stated in his affidavit that the
defendant No.1 for valuable consideration drew two Demand Bills of
Exchange on the defendant No.2, in his favour, one Demand Bill of
Exchange dated 15.10.2016 of Rs.18,00,000/ and another Bill of
Exchange dated 13.01.2017 of Rs.18,00,000/. Plaintiff has further
stated that the said Demand Bills of Exchange were accepted by the
defendant No.2 for payment. The defendant No.3 has signed the said
Demand Bills of Exchange as Drawee in case of need thus the defendant
No.3 has also taken the liability to pay the amount.
14. Plaintiff has further stated that the Director of the defendant
No.1 has signed the said Demand Bills of Exchange as Drawer. The
defendant No.2 has signed the said Demand Bills of Exchange as
acceptor and the defendant No.3 has signed the said Demand Bills of
Exchange as Drawee in case of need. Plaintiff has further stated that the
said 3 defendants have signed the said Demand Bills of Exchange in his
presence and he identified the signatures of the defendants.
15. Plaintiff has further stated that the said sum of Rs.36,00,000/ of
the Two Demand Bills of Exchange of Rs.18,00,000/ each was
advanced to the defendants by cheques the details of which are as
follows :
Date of
Cheque
Cheque No. Amount Name of Bank
15.10.2016 685313 Rs.18,00,000/ State Bank of India,
Kemps Corner Branch
13.01.2017 685325 Rs.18,00,000/ State Bank of India,
Kemps Corner Branch
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16. Plaintiff has further stated that upon receipt of the said sum of
Rs.36,00,000/ by cheques, the defendants for valuable consideration
executed two Demand Bills of Exchange of Rs.18,00,000/ each, one
Demand Bill of Exchange dated 15.10.2016 and another Demand Bill of
Exchange dated 13.01.2017.
17. Plaintiff has further stated that the defendants have accordingly
paid discount by cheque on 15.10.2016 after deducting TDS of
Rs.38,000/ and by NEFT on 09.02.2017 after deducting TDS of
Rs.44,800/. Plaintiff has further stated that the defendants have made
part payments by cheques, issued in his favour towards Demand Bill of
Exchange dated 15.10.2016 of Rs.18,00,000/ as follows :
Date of Cheque
of payment by
NEFT
Mode of
Payment
Amount Name of Bank
18.11.2016 Cheque
No.21025
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
16.12.2016 Cheque
No.21028
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
18.01.2017 Cheque
No.21031
Rs.1,50,000/ Central Bank of India,
Dahisar Branch
21.03.2017 NEFT Rs.1,50,000/ Central Bank of India,
Dahisar Branch
18. Plaintiff has further stated that the defendants promised to pay
the balance sum of Rs.12,00,000/ of the Demand Bill of Exchange
dated 15.10.2016 and the sum of Rs.18,00,000/ of the Demand Bill of
Exchange dated 13.01.2017, within a short time. Plaintiff has further
stated that he thereafter on 04.10.2017, presented both the Demand
Bills of Exchange i.e. one Demand Bill of Exchange dated 15.10.2016
for the balance sum of Rs.12,00,000/ and another Demand Bill of
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Exchange dated 13.01.2017 for sum of Rs.18,00,000/ to the defendant
No.2 and then to the defendant No.3 for payment but both the
defendant Nos. 2 and 3 dishonoured the said Demand Bills of Exchange
for payment of the sum of Rs.30,00,000/ by nonpayment and
promised to pay the amount within a short time.
19. Plaintiff has further stated that he thereafter, then on
04.10.2017, presented both the Demand Bills of Exchange i.e. one
Demand Bill of Exchange dated 15.10.2016 for the balance sum of
Rs.12,00,000/ and another Demand Bill of Exchange dated 13.01.2017
for sum of Rs.18,00,000/ to the defendant No.1 for payment and the
defendant No.1 towards repayment handed over to him, two
confirmation letters dated 04.10.2017 addressed to him, one letter
alongwith one cheque dated 04.12.2017, bearing No.021877 of
Rs.12,00,000/ drawn on Central Bank of India, Dahisar Branch,
Mumbai – 400 068, issued in his favour towards repayment of the
balance amount of the Demand Bill of Exchange dated 15.10.2016 and
another letter alongwith cheque dated 04.12.2017, bearing No.021878
of Rs.18,00,000/ drawn on Central Bank of India, Dahisar Branch,
Mumbai – 400 068, issued in his favour towards repayment of the
Demand Bill of Exchange dated 13.01.2017 and requested him to
present the said cheque for payment on 04.12.2017 and assured that
the said cheques will be honoured on presentment.
20. Plaintiff has further stated that he accordingly upon the
defendants instructions presented both the cheques for payment to the
defendant's Bankers through his Bankers i.e. HDFC Bank, but the said
cheques were dishonoured with a remark “Funds Insufficient” vide
intimation dated 15.12.2017. Plaintiff has further stated that thus the
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defendant No.1 also dishonoured the said Demand Bills of Exchange for
payment of the sum of Rs.30,00,000/ by nonpayment and promised to
pay the amount within a short time.
21. Plaintiff has further stated that he thereafter on several occasions
called upon all the defendants to pay the said sum of Rs.30,00,000/
alongwith interest at the rate of 18% p.a., but all the defendants under
one pretext or the other avoided payment inspite of several promises.
Plaintiff has further stated that he ultimately by his Advocate's letter
dated 19.12.2017 called upon the defendants to pay the said balance
sum of Rs.30,00,000/ alongwith interest at the rate of 18% p.a. within
48 hours from the receipt of the said letters. Plaintiff has further stated
that the defendants have neither replied to said letter nor paid the
amount up to this date.
22. Plaintiff has further stated that the Office of his Advocate has
received the Registered A.D. Cards showing acknowledgment of service
of the Advocate's letter dated 19.12.2017.
23. Plaintiff has produced all the corroborating documents which are
Demand Bills of Exchange and plaintiff's Advocate's letter alongwith
acknowledgements on record as documentary evidence. The oral
evidence of plaintiff is corroborated by documentary evidence.
Defendants 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.35,00,000/ from all the defendants jointly.
24. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
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amount of Rs.30,00,000/ 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.
2. Defendant Nos.1 to 3 are jointly directed to pay sum of
Rs.35,00,000/ to plaintiff along with interest @ 9% p.a. on
the amount of Rs.30,00,000/ 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: 24.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 24.06.2019
Transcribed on : 24.06.2019
Signed on : 24.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.07.2019 At 12:07 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
24.06.2019
Judgment/Order signed by P.O. on 24.06.2019
Judgment/Order uploaded on 10.07.2019
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