Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010011672018
Filed on :20.01.2018
Registered On :06.03.2018
Decided on :03.02.2022
Duration : Y-04/M-00/D-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 291 OF 2019
IN
Exhibit-05
CNR No. MHCC010011672018
Naresh Rakhma Walunj
Aged about : 43 years. Occ: Driver
An Adult, Indian Inhabitant
Residing at Room No. 1, Indira Nagar No.2,
Siddheshwar Mandir, Golibar Road,
Ghatkopar(West), Mumbai- 400 086. ... Plaintiff
V/s.
Laxman Maruti Titakare
Aged about 42 years, Occ: Services
An Adult, Indian Inhabitant,
Residing at Bharat Mata Nagar,
Sahakar Colony, Lane No. 1, Survey No. 75,
Shrirang Chavan Pathak,
dighi-Alandi Road, Pune(Bhosari) 411 015.
... Defendant
SUIT FOR RECOVERY OF MONEY
Appearance:-
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Mr. Taral Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 03/02/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The plaintiff has given friendly loan of Rs.4,00,000/- to the
defendant by cash on dtd. 16.11.2015. The defendant under his own
handwriting with the signature on the revenue stamp executed a note
on plain paper acknowledging the receipt pf friendly loan. As such,
defendant was under liability to pay towards the plaintiff hence,
towards the discharge of said legal liability he drew and delivered to the
plaintiff a post dated cheque of Rs.4,00,000/- bearing no. 02077846
dtd.15.2.2016. Said cheque on being presented to the bank has been
dishonored vide a memo of dishonor dtd.17.2.2016 with a remark of
‘PAYMENT STOPPED BY DRAWER’. By virtue of dishonor of said cheque
and pursuant to the provisions of Negotiable Instrument Act, the
plaintiff has become entitled to recover said amount of cheque
alongwith interest at the rate of 18% p.a. from the date of dishonor of
cheque.
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3. The plaintiff issued letter/notice through advocate on
20.5.2016 to the defendant calling upon him to pay the amount of
Rs.4,00,000/- alongwith accrued interest but the defendant failed to
comply with said requisition and gave false reply to the notice. The
plaintiff averred that the defendant is liable to pay the outstanding
amount of Rs.4,00,000/-with interest at the rate of 18% p.a .
4. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendant is liable to pay a
sum of Rs.4,27,000/- to the plaintiff and further interest at the rate of
18% p.a on the principal amount from the date of suit till its realization.
Hence, this suit.
5. The suit summons were duly served on the defendant but
he failed to appear and contest the suit. Hence, suit is posted for
judgment as per order XXXVII Rule 2(3) of Code of Civil Procedure
1908 judgment.
6. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendant ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.4,27,000/- with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
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REASONS
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.04 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Original Written Note dated
16.11.2015 executed between
plaintiff and defendant.
Exh. 4/1
2 Original of said Cheque no.
077846 dated 15.02.2016 with
return memo dated 17.02.2016
and Bank Account Passbook.
Exh. 4/2
3 Office copy of Legal Notice Dtd.
20.5.2016 issued by Advocate of
plaintiff to the defendant.
Exh. 4/3
4 Office copy of Reply dated
9.6.2016 given by Advocate of
defendant to the plaintiff.
Exh. 4/4
5 Office copy of Rejoinder dated
9.10.2017 given advocate of
plaintiff to the defendant.
Exh. 4/5
6 Office copy of Reply dated
14.11.2017 given by defendant to
the rejoinder of plaintiff.
Exh. 4/6
7. Office copy of Rejoinder dated
21.11.2017 of the plaintiff to the
reply of defendant.
Exh. 4/7
8 Office copy of reply dated
30.12.2017 given by defendant to
the plaintiff.
Exh. 4/8
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AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendant. The documents produced on record by the plaintiff shows
that the defendant issued the post dated cheque to the plaintiff for the
amount of Rs.4,00,000/- and said cheque came to be dishonored for
“payment stopped by drawer” . Said amount is not paid by the
defendant to the plaintiff. Further, it reveals from the record that said
transaction for issuance of cheque took place on dtd.16.11.2015, post
dated chques is dtd. 15.2..2016 and the same got dishonored on dtd.
17.2.2016, the notice/letter of demand was issued to the defendant on
dtd.20.5.2016 and the suit is filed on 20.1.2018. As such, the plaintiff’s
claim in the suit is well within limitation.
9. All the documents produced by the plaintiff at list Exhibit-
04 goes to establish that the defendant has issued cheque for
Rs.4,00,000/- towards the legal liability but staid cheque got
dishonored. The legal liability is not discharged by the defendant
thooug the liablity is acknowledged and accepted by the defendant by
signing written note dtd. 16.11.2015. Therefore, the plaintiff is claiming
Rs.4,27,000/- which is the amount calculated with interest at the rate of
18% p.m from the date of issuance of cheque dtd.16.11.2015 till the
filing of suit. Said amount is not repaid by the defendant. Therefore,
the defendant is liable to pay the outstanding amount of Rs.4,27,000/-
to the plaintiff. In this background, I have arrived at the conclusion that
the plaintiff is entitled to recover sum of Rs.4,27,000/-from the
defendant.
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10. According to the plaintiff the outstanding dues against the
defendant is Rs.4,27,000/- and said amount is calculated alongwith
with interest at the rate of 18% p.m as stated above. Apart from said
amount which is due against the defendant on the date of filing of the
suit, the plaintiff has claimed interest at the rate of 18% per annum on
the principal amount. The defendant neither appeared nor contested
the suit. There is nothing on record to show that the said translations
between the parties was not the commercial transactions. It relates to
the Negotiable Instrument. Therefore, I hold that the plaintiff is
entitled to recover the principal amount alongwith interest at the rate of
18% p.a. till realization of the amount. Therefore, I hold, the rate of
interest at the rate of 18% per annum would be just and proper to be
awarded on the principal sum of Rs.4,00,000/-. Hence, point no.1 is
answered in the affirmative.
AS TO POINT NO.2:
11. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.4,27,000/- from the defendant
with interest at the rate of 18% per annum on the principal sum of
Rs.4,00,000/- from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from the defendant.
Hence, in answered to point no.2, I proceed to pass the following order.
ORDER
1. The defendant shall pay Rs.4,27,000/-(Rs. Four Lacs
Twenty Seven Thousand Only) to the plaintiff, with
interest at the rate of 18% per annum on the principal
sum of Rs.4,00,000/- from the date of filing of the suit
till its realization.
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2. The defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :03.02.2022 Gr. Bombay
Dictated on : 03.02.2022
Typed on : 03.02.2022
Signed on : 03.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.02.2022 4.00p .m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
03.02.2022
JUDGMENT/ORDER signed by
P.O.on
03.02.2022
JUDGMENT/ORDER uploaded on 03.02.2022
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