Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.280/2019
Received on : 19.01.2019
Registered on : 12.02.2019
Decided on : 03.05.2019
Duration : Y M D
00 03 16
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 280 OF 2019
CNR NO.: MHCC010009522019
Kanayalal Gordhandas Bathija
Adult Indian Inhabitant
of Bombay, aged 81 years,
Karta and Manager of Kanayalal G. Bathija H.U.F
carrying on business at 206,
Niranjan, 99, Netaji Subhash
Chandra Bose Road, Bombay – 400 002. ...Plaintiff.
Versus
1. Neha A. Masalia, Adult Indian
Inhabitant of Bombay age not known
carrying on business in the Name
and Style of Jinay Enterprise,
a Proprietory concern as its
sole Proprietor at Flat No.504/B,
Tulip Cooperative Housing Society,
Royal Complex, CKP Colony,
Eksar Road, Borivali (West),
Mumbai – 400 092.
2. Amit Naresh Masalia, Adult, Indian
Inhabitant of Bombay age not known
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carrying on business at Flat No.504/B,
Tulip Cooperative Housing Society,
Royal Complex, CKP Colony, Eksar Road,
Borivali (West), Mumbai – 400 092. ...Defendants.
Appearances:
Advocate Ms. Kavita S. Lalwani for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 3rd MAY, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that he is carrying on business at the above
address. The defendant No.1 is carrying on business in the Name and
Style of Jinay Enterprise, a Proprietory concern as its Sole Proprietor at
the above address. The defendant No.2 is carrying on business at the
above address. Plaintiff has further stated that on 10.10.2017, the
defendant No.1 for valuable consideration drew a Demand Bill of
Exchange on the defendant No.2 in his favour in the sum of
Rs.2,50,000/. The said Demand Bill of Exchange was accepted by
defendant No.2 for payment. Plaintiff has further stated that the sum of
Rs.2,50,000/ was advanced to the defendants by cheque dated
10.10.2017 bearing No.116217 of Rs.2,50,000/ drawn on Union Bank
of India, and upon receipt of the said cheque, the defendants for
valuable consideration executed the Demand Bill of Exchange dated
10.10.2017 of Rs.2,50,000/ for valuable consideration in his favour.
2. Plaintiff has further stated that the defendants have made
payments as follows:
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Date of Payment Cheque/NEFT Amount
13.11.2017 Cheque Rs.25,000/
12.12.2017 Cheque Rs.25,000/
16.01.2018 NEFT Rs.25,000/
01.03.2018 NEFT Rs.25,000/
29.03.2018 NEFT Rs.25,000/
27.04.2018 Cheque Rs.25,000/
28.05.2018 NEFT Rs.25,000/
08.08.2018 Cheque Rs.25,000/
Total Rs.2,00,000/
3. Plaintiff has further stated that thereafter on 13.08.2018
presented the said Demand Bill of Exchange dated 10.10.2017 for the
balance sum of Rs.50,000/ to the defendant No.2 and then to the
defendant No.1 for payment but both the defendants dishonoured the
said Demand Bill of Exchange dated 10.10.2017 for the balance sum of
Rs.50,000/ by nonpayment and promised to pay the amount within a
short time. Therefore, plaintiff filed this suit.
4. Defendant Nos. 1 and 2 failed to appear in the suit, therefore,
suit has proceeded exparte against them.
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
amount of Rs.53,750/ from
...Partly in the
affirmative.
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defendants alongwith interest @ 18%
p. a. on the sum of Rs.50,000/ from
the date of filing of the suit till its
realisation ?
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.5 Demand Bill of Exchange dated 10.10.2017of
Rs.2,50,000/
2. Exh.6 Copy of plaintiff's Advocate's letter dated 03.11.2018
alongwith postal acknowledgements receipts and A.D.
Cards.
AS TO POINT NOS. 1 AND 2:
8. Plaintiff has adduced his evidence in the form of affidavit below
Exh.3 and stated that on 10.10.2017, the defendant No.1 for valuable
consideration drew a Demand Bill of Exchange on the defendant No.2
in his favour in the sum of Rs.2,50,000/. The said Demand Bill of
Exchange was accepted by defendant No.2 for payment. Plaintiff has
further stated that the Proprietor of the defendant No.1 signed the said
Demand Bill of Exchange as Drawer and Amit Naresh Masalia the
defendant No.2 has signed the said Demand Bill of Exchange as
Acceptor in his presence. He has further stated that the sum of
Rs.2,50,000/ was advanced to the defendants on 10.10.2017 by
cheque dated 10.10.2017 bearing No.116217 of Rs.2,50,000/ drawn
on Union Bank of India, and upon receipt of the said cheque, the
defendants for valuable consideration executed the Demand Bill of
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Exchange dated 10.10.2017 of Rs.2,50,000/ for valuable consideration
in his favour.
9. Plaintiff has further stated that the defendants have made
payments as follows:
Date of Payment Cheque/NEFT Amount
13.11.2017 Cheque Rs.25,000/
12.12.2017 Cheque Rs.25,000/
16.01.2018 NEFT Rs.25,000/
01.03.2018 NEFT Rs.25,000/
29.03.2018 NEFT Rs.25,000/
27.04.2018 Cheque Rs.25,000/
28.05.2018 NEFT Rs.25,000/
08.08.2018 Cheque Rs.25,000/
Total Rs.2,00,000/
10. Plaintiff has further stated that thereafter on 13.08.2018
presented the said Demand Bill of Exchange dated 10.10.2017 for the
balance sum of Rs.50,000/ to the defendant No.2 and then to the
defendant No.1 for payment but both the defendants dishonoured the
said Demand Bill of Exchange dated 10.10.2017 for the balance sum of
Rs.50,000/ by nonpayment and promised to pay the amount within a
short time. He has further stated that by his Advocate's letter dated
03.11.2018 called upon the defendants to pay the said balance sum of
Rs.50,000/ alongwith interest at the rate of 18% p.a. within 48 hours
from the receipt of the said letter. He has further stated that the
defendants have received the said letter. He has further stated that the
defendants have neither replied to the said letter nor paid the amount.
11. Plaintiff has produced all the corroborating documents which are
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Demand Bill of Exchange, Copy of plaintiff's Advocate's letter alongwith
Original Postal acknowledgements receipts and original A.D. Cards 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.53,750/ from both defendants jointly.
12. 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
amount of Rs.50,000/ 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 and 2 are jointly directed to pay sum of
Rs.53,750/ to plaintiff along with interest @ 9% p.a. on the
sum of Rs.50,000/ 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: 03.05.2019. City Civil Court,
Gr. Bombay.
Dictated on : 03.05.2019
Transcribed on : 03.05.2019
Signed on : 03.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24.05.2019 At 1:28 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
03.05.2019
Judgment/Order signed by P.O. on 03.05.2019
Judgment/Order uploaded on 24.05.2019
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