Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.651/2018
MHCC010010332018 Presented on : 18/01/2018
Registered on : 21/06/2018
Decided on : 17/01/2024
Duration : 06Y 00M 01D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY CIVIL SUIT NO.651 OF 2018
Niraj Kumar
Occupation : Service, Presently R/a-18/1A, New
Navy Nagar, Colaba, Mumbai - 400005.
]
]
] ..Plaintiff
V/s.
Mr. Mubarak Rahim Shaikh
Through his Director,
M/s. Sai Bhumi Land Infrastructure Pvt. Ltd.,
Dreamland CHS Ltd, Flat No. 204, Building No. B/30,
Near Thane Bus Stop, Mira Road (East), Dist-Thane.
]
]
]
]
] ..Defendant
Appearance :-
Ms. Pratibha Gavhane, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 17/01/2024.
J U D G M E N T
1 This summary suit is filed for recovery of amount
contending that the plaintiff had entered into a Memorandum of
Understanding (MOU) dated 30/05/2014 regarding purchase of
property from the defendant for Rs.2,36,000/- and paid Rs.1,09,000/-
towards part payment. It was further agreed that if there was any non
requirement of the said amount, same will be surrendered to the
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No.651/2018
defendant and sale amount paid will be returned back to the plaintiff
by defendant. The plaintiff contended that vide letter dated
20/03/2015, Surrender agreement was made which was accepted by
the defendant and the defendant had issued a cheque of Rs.1,29,600/-
towards repayment of amount with interest in favour of plaintiff.
However, on presentation said cheque returned dishonoured.
Consequently, plaintiff made grievance before The Consumer Guidance
Society of India and on repeated demands, the defendant had paid and
amount of Rs.20,000/- as part payment under the cheque. The
defendant did not pay further remaining amount, thus, amount of
Rs.1,09,000/- remained due and recoverable. Though the defendant
had given assurance that he will pay the remaining amount in between
15/07/2017 till 15/12/2017, but did not stand by his commitment.
Consequently, the plaintiff is entitled for recovery of said amount with
interest at the rate of 12% per annum, hence, this suit.
2 The defendant failed to appear before the Court, though
served with writ of summons. Hence, as per the order in roznama
dated 01/02/2019, suit proceeded ex-parte against defendant.
3 At the stage of evidence, the plaintiff adduced his evidence
and relied on various documents (Exhibit-09 to 14) under list (Exhibit-
08). Heard learned advocate for plaintiff.
4 Exhibit-09 is the cheque dated 25/07/2015, the memo of
cheque (Exhibit-10) discloses that the cheque returned dishonoured.
The correspondence vide Exhibit-11 to 14 shows that the plaintiff
demanded the defendant to pay the amount, but the defendant
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No.651/2018
avoided, therefore, plaintiff made complaint before The Consumer
Guidance Society of India and concerned society has made
correspondence with the defendant as per Exhibit-14. The defendant
admitted his liability and agreed to pay the amount balance, but did
not pay the said amount. Therefore, I am of view that the plaintiff has
established that he is entitled for recovery of balance amount under
the cheque with interest from the date of default i.e. cheque returned
memo dated 21/10/2015.
5 His absence and omission to appear before the Court on
being served with the writ of summons shows that he has no
substantial defence and has admitted the claim of plaintiff. Thus, there
is no reason to disbelieve the contentions of plaintiff, which remains
unchallenged. Hence, suit deserves to be decreed as per the provisions
of Order XXXVII Rule 2(3) of the Code of Civil Procedure.
6 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 12% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e.
cheque returned memo dated 21/10/2015, till its full realisation.
7 As the defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
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No.651/2018
ORDER
1. Summary Civil Suit No.651/2018, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.1,09,000/- alongwith interest at the rate of 9% per
annum from 21/10/2015, till its full realisation from
the defendant.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
sd/-
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 17/01/2024 C.R. No.84.
Dictated on : 17/01/2024
Transcribed on : 18/01/2024
Signed on : 18/01/2024
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No.651/2018
“Certified to be true and correct copy of the original signed order”.
18/01/2024
at about 03.20 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.84, Mazgaon,
Mumbai
Date of pronouncement of Order : 17/01/2024
Order signed by Hon'ble Judge on : 18/01/2024
Order uploaded on : 18/01/2024
at about 03.20 p.m.
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