Order 2

Order Details: Ex-parte Judgement
Pdf Text: Filed on :24.01.2018
Registered On :16.02.2018
Decided on :03.12.2021
Duration : Y-03/M-01/D-20
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 208 OF 2018
Exhibit- 05
(SUMMONS FOR JUDGMENT NO. 34 OF 2020)
CNR NO.- MHCC01-001370-2018
INSTA CAPITAL PVT. LTD.
Company registered under the Companies Act,
1956, carrying on Business at 207,
Niranjan,99 Marin Drive.
Mumbai -400 002. ... Plaintiff
V/s.
1. M/s. Jinaam Fashion World,
A partnership Firm,
Carrying on business at Block A,
Building no. G/1051, 107EE,
Sun Mill Compound, Opp. Dena Bank,
Lower Parel (West), Mumbai- 400 013.
And at
B/6 Boomi World, 1 and 2 Floor,
Bhumi Associate, Village Pimples,
Taluka Bhiwandi, Dist. Thane -421 302.
2. Dharmendra M. Gada
Adult, Indian Inhabitant of Mumbai,
Residing at F 3401, Red Spring Mills,
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G.D. Ambedkar Marg, Near Wadala Tele
Exchange, Dadar (East), Mumbai- 400 014.
3. Jitendra Mulji Gada
Adult, Indian Inhabitant of Mumbai,
the partner of the Defendant No.1
Residing at F 3401, Red Spring Mills,
G.D. Ambedkar Marg, Near Wadala Tele
Exchange, Dadar (East), Mumbai- 400 014.
(Defendant Nos. 2 and 3 carry on Business at
the address of the defendant No. 1)
... Defendants
Appearance:-
Ms. Kavita Lalwani Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 03/12/2021
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 is a company registered under the Companies Act,
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1956, carrying on the business at the address given in the suit plaint.
Defendant no.1 is a partnership firm and defendant no.2 and 3 are the
partners of defendant no.1. The defendants approached to the plaintiff
and the defendant no.1 on dtd.02.06.2017 for valuable consideration of
Rs.40,00,000/- received from plaintiff, drew a bill of exchange directing
thereby, defendant no.2 to pay to the plaintiff or Order at Mumbai a
sum of Rs.40,00,000/- on demand. Said bill of exchange was accepted
and delivered by defendant no.2 to the plaintiff on the same day. The
amount of Rs.40,00,000/- was advanced to the defendants by cheque
dtd. 2.6.2017 bearing No. 932644 of Rs.40,00,000/- drawn on ICICI
Bank, Marin-lines Branch, Mumbai. Accordingly, the defendants
executed the bills of exchange in favour of plaintiff. They repaid the
sum of Rs.15,00,000/- to the plaintiff as per the details given in the suit
plaint and handed over the cheques for Rs.25,00,000/- as part payment
towards the balance sum of Rs.25,00,000/-. Said cheques were
presented in bank for honour as per the instructions given by the
defendants but the same got dishonored. The plaintiff thereafter
presented demand bill of exchange to the defendant no .2 and then to
the defendant no.1 for payment of balance sum of Rs.25,00,000/-. Both
defendants dishonored the demand of bill of exchange by non
payment . Therefore, the defendants are jointly and severally liable to
pay the balance sum of Rs.25,00,000/- alongwith interest at the rate of
18% p.a. The plaintiff issued letter/notice through advocate on
08.01.2018 to the defendants calling upon them to pay the outstanding
amount alongwith accrued interest but the defendants failed to comply
with said requisition. The plaintiff averred that the defendants are
liable jointly and severally to pay the outstanding amount with interest.
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3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.25,25,000/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a
from the date of suit till its realization. Hence, this suit.
4. The suit summons were duly served on the defendants.
They appeared before the court and submitted leave to defend. The
Summons for Judgment issued by the plaintiff vide Summons for
Judgment no.34/2020 came to be dismissed and the defendants were
allowed to defend the suit on a condition of depositing the amount of
Rs.12,50,000/- and filing of written statement within four weeks from
the date of said order i.e 4.3.2020. The defendants measurably failed to
deposit said amount. The non deposit certificate issued by the Dy.
Registrar, PLA Section, Account Department, City Civil and Sessions
Court, Bombay is produced on record by the plaintiff. Neither the
defendants appeared nor deposited the amount nor filed written
statement. Hence, suit is posted for judgment as per order XXXVII Rule
2(3) of Code of Civil Procedure 1908 judgment.
5. 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
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.25,25,000/- with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
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REASONS
6. 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 Bills of Exchange dated 2.6.2017 of
Rs. 40,00,000/-
Exh. 4/1
2 Plaintiff’s Advocates’ letter dated
8.1.2018, alongwith
acknowledgment
Exh. 4/2
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The details are given earlier as to how the defendants failed
to comply the order passed on Summons for Judgment No. 34/2020.
The documents produced on record by the plaintiff shows that the
defendants received the amount of Rs.40,00,000/- from the plaintiff
drawing bill of exchange directing thereby defendant no.2 to pay to the
plaintiff or ordered a sum of Rs.40,00,000/- on demand and said bill of
exchange has been accepted and delivered by the defendant no.2 and
then by defendant no.1 to the plaintiff. Further, it reveals from the
record that said transaction took place on dtd.2.6.2017, the
notice/letter of demand was issued to the defendants on dtd. 08.1.2018
and the suit is filed on 23.1.2018. As such, the plaintiff’s claim in the
suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
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04 goes to establish that plaintiff has given amount of Rs.40,00,000/- to
the defendants on bill of exchange. The defendants repaid the amount
of Rs.15,00,000/-. The remaining dues against the defendants are
Rs.25,00,000/-. The plaintiff is claiming Rs.25,25,000/- which is the
amount calculated with interest at the rate of 18% p.m from the date
4.1.2018 till 24.1.2018. Said amount is not repaid by any of the
defendants. Therefore, all the defendants are liable jointly and severally
to pay the outstanding amount of Rs.25,25,000/- to the plaintiff. In this
background, I have arrived at the conclusion that the plaintiff is
entitled to recover sum of Rs.25,25,000/- from the defendants jointly
and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.25,25,000/- and said amount is calculated alongwith
with interest at the rate of 18% p.m from the date 4.1.2018 till
24.1.2018. So the total outstanding amount is Rs.25,25,000/-. 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. As per section 34 of the Code of Civil
Procedure the rate of interest may exceed 6% per annum, if the
transaction is commercial and there is no contract pertaining to the
same between the parties. In the present case the transaction is a
commercial one and there is contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
defendant is liable to pay the interest at the rate of 18% p.a. 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 adjudged i.e. amount of
Rs.25,00,000/-. Hence, point no.1 is answered in the affirmative.
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AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.25,25,000/-from the
defendants jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.25,00,000/- from the date of filing of
the suit till its realization. Plaintiff is also entitled to recover cost of the
suit from the defendants. Hence, in answered to point no.2, I proceed to
pass the following order.
ORDER
1. The defendant nos.1 to 3 shall pay Rs.25,25,000/- (Rs.
Twenty Five Lakhs Twenty Five Thousand Only) to the
plaintiff jointly and severally, with interest at the rate
of 18% per annum on the principal sum of
Rs.25,00,000/- from the date of filing of the suit till its
realization.
2. The defendant nos. 1 to 3 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 :03/12/2021 Gr. Bombay
Dictated on : 03/12/2021
Typed on : 03/12/2021
Signed on : 03/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/12/2021 1.00p .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
03/12/2021
JUDGMENT/ORDER signed by
P.O.on
03/12/2021
JUDGMENT/ORDER uploaded on 04/12/2021
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