Final Order 1

Order Details: Copy of Judgment
Pdf Text: ..1.. Summary Suit No.191/2020
MHCC010012762020 Presented on : 30/01/2020
Registered on : 14/02/2020
Decided on : 20/02/2024
Duration : 04Y 00M 22D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
EXHIBIT-6
SUMMARY SUIT NO.191 OF 2020
(CNR NO.MHCC01-001276-2020)
Jitendra Amar Dodeja, Adult, Indian Inhabitant
residing at 1903, Whitefield Chs Ltd, Hiranandani
meadows Gladys Alwaris road, Thane West, 400 610.
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Versus
1. D. Shambhulal & Co., a Partnership Firm,
carrying on business at 140, Victoria Road,
Byculla, Mumbai – 400 027.
2. M. K. Brothers, a Partnership Firm, carrying on
business at 140, Victoria Road, Byculla, Mumbai –
400 027.
3. Bhupendra K. Upadhyay, Adult, Indian Inhabitant
of Bombay, residing at 303/9, Ramnagar Colony,
Prashant N. D. Road, Baudhan Road, Pune – 21.
4. Amrish Upadhyay, Adult, Indian Inhabitant of
Bombay.
5. Jay J. Upadhyay, Adult, Indian Inhabitant.
6. Bharat K. Upadhyay, Adult, Indian Inhabitant of
Bombay,
(Defendant Nos.3 to 5 are partners of Defendant
Nos.1 and carry on business at the address of
defendant No.1 and defendant Nos.3 to 6 are
partners of defendant No.2 and carry on business
at the address of defendant No.2)
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..2.. Summary Suit No.191/2020
Appearance :-
Learned Advocate Kavita Lalwani for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 20/02/2024.
J U D G M E N T
1 This summary suit is filed for recovery of amount under
the demand bill of exchange. Plaintiff has filed this suit claiming that
defendant Nos.1 and 2 are company and rest of defendants are its
partners respectively. The plaintiff stated that he paid Rs.1,00,000/- to
defendant No.1, who drew bill of exchange on 20/04/2017, directing
defendant No.2 to pay to plaintiff, a sum of Rs.1,00,000/- on demand.
The bill of exchange was accepted and delivered by defendant No.2 to
the plaintiff. On 22/05/2017, plaintiff presented the bill of exchange to
defendant No.2 and demanded to pay the amount under bill of
exchange, but defendant No.2 did not pay. The plaintiff immediately
informed defendant No.1, who neglected to pay. It is contended that
defendants are jointly and severally liable to pay the amount, as
defendant No.3 to 6 are partners of the defendant Nos.1 and 2
company. Thereafter, on 27/12/2019, plaintiff issued notice to the
defendants through advocate calling upon them to pay the amount
alongwith interest, but in vain. Hence, plaintiff was constrained to file
instant suit.
2 The defendants in response to the writ of summons,
tendered their appearance, thereafter, the plaintiff took out summons
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..3.. Summary Suit No.191/2020
for judgment No.21 of 2021. The defendant resisted the contention of
the plaintiff in suit and summons for judgment, and filed reply
claiming unconditional leave to defend. The defendants tendered
written notes of argument. The summons for judgment was disposed
and conditional leave to defend was granted on depositing of
Rs.1,00,000/- by the defendants. The defendants till late failed to
deposit the amount of Rs.1,00,000/-, therefore, plaintiff has submitted
non-deposit certificate (Exhibit-05) on 22/01/2024.
3 Heard learned advocate for the plaintiff. None present for
defendant. There is nothing on record placed by the defendants to
show that they have complied the order of this Court. Therefore,
absence of compliance of conditional order of deposit of amount for
leave to defend, the suit was required to be proceeded further without
reply as per the provisions of order XXXVII Rule 2(3) of the Code of
Civil Procedure, Suit deserves to be decreed.
4 It also reveals from the record that plaintiff has tendered
original bill of exchange dated 20/04/2017 and notice dated
27/12/2019 alongwith the summons for judgment. This Court already
observed in the order of summons for judgment No.21 of 2021 that
defendants have not specifically denied the execution of document and
liability of the claim amounting Rs.1,00,000/-. Hence, suit deserved to
be decreed directing defendants to pay Rs.1,00,000/- with interest
from the date of default.
5 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendants, however, I
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..4.. Summary Suit No.191/2020
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 defendants. 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
27/12/2019, till its full realisation.
6 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Suit No.191 of 2020, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.1,00,000/- alongwith interest at the rate of 9% per
annum from 27/12/2019, 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 : 20/02/2024 C.R. No.84.
Typed on : 20/02/2024.
Draft checked on : 20/02/2024
Signed on : 21/02/2024.
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“Certified to be true and correct copy of the original signed order”.
21/02/2024
at about 5.30 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 : 20/02/2024
Order signed by Hon'ble Judge on : 20/02/2024
Order uploaded on : 21/02/2024
at about 5.30 p.m.
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