Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Suit No. 2177 of 2021 1
MHCC010014262020
Presented on : 01-02-2020
Registered on : 21-02-2020
Decided on : 18-01-2024
Duration : 3 Yr, 11 M, 17 D
Exh.
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.2177 OF 2021.
Jitendra Amar Dodeja. ]
Adult, Indian Inhabitant, ]
aged 28 years, residing at ]
1903, Whitefield CHS Ltd. , ]
Hiranandani meadows ]
Gladyas Alwaris Road, ]
Thane West, 400 610. ] .... Plaintiff.
V/s
Meena B.Upadhyay, Adult, ]
Indian Inhabitant of ]
Bombay, age and full name ]
not known Carrying on ]
business at ]
140, Victoria Road, ]
Byculla, Mumbai – 400 027. ]
And carrying on business, ]
and residing at ]
303/9, Ramnagar Colony, ]
Prashant N.D. Road, Baudhan ]
Road, Pune -21. ]….Defendants.
Appearance:
Adv. Kavita Lalwani for the plaintiff.
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Judgment in Suit No. 2177 of 2021 2
Defendant -Exparte.
SUIT FOR RECOVERY OF MONEY
Coram : Shri. U. C. Deshmukh
CR No. : 59.
Date :18th September, 2023.
ORAL JUDGMENT
This is suit for recovery of an amount of Rs.2,05,125/-
along with further interest at the rate of 18% p.a. on principal amount
of Rs. 1,50,000/-
Brief facts of the plaintiff’s case are as under :
2. The plaintiff contends that he had advanced an amount of
Rs. 2,50,000/- on 23.05.2016 through cheque bearing No.000024 to the
defendant. The defendant had promised to execute demand bill,
however, he avoided. The defendant sought extension from time to time
and he made payment against the interest on 31/05/2016,
06/09/2016, 30/11/2016 and 27/02/2017. The defendant also paid
part payment of Rs.1,00,000/- on 29.06.2017 through cheque bearing
No. 094676. But failed to pay remaining amount. Thus, the defendant is
liable to pay an amount of Rs.2,05,125/- which include an amount
against interest at the rate of 18% p.a. on principal amount of
Rs.1,50,000/-. Hence, this suit
3. Initially the suit was registered as ‘Commercial Suit’ bearing
No. 612/2012. Considering the nature of the suit, it was directed that
the suit be re- registered vide order dated 28th October 2021. Vide same
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Judgment in Suit No. 2177 of 2021 3
order the suit is proceeded without appearance of the defendant.
Thereafter, the suit is registered as present stand. In view of the order
dated 26/10/2021 there was exparte hearing. Though the advocate for
defendants had appeared on 10st August 2022, no steps are taken by
the defendant to take part in the suit.
4. Thereafter the plaintiff filed affidavit of evidence at Exh. 4
and list of documents at Exh. 5 in support of case which are as follows .
Sr. No. Documents Exh. No.
1. Photocopy of cheque dated 23.05.2016
of Rs. 2,50,000/- certified by Kotak
Mahindra Bank of Plaintiff issued in
favour the defendant.
Exh. 6
2. Certified copy of Bank Statement issued
by Kotak Mahindra Bank from
18.04.2016 till 31.03.2018.
Exh. 7
3. Photocopy of cheque dated 31.05.2016
of Rs. 9,167/- certified by Kotak
Mahindra Bank of Cheque issued by
Defendant in favour of the plaintiff.
Exh. 8
4. Photocopy of Cheque dated 6.09.2016 of
Rs. 9,375/- certified by Kotak Mahindra
Bank of Cheque issued by defendant in
favour of the Plaintiff.
Exh. 9
5. Photocopy of cheque dated 30.11.2016
of Rs. 9,375/- certified by Kotak
Mahindra Bank of cheque issued by
defendant in favour of the plaintiff.
Exh. 10.
6. Photocopy of Cheque dated 27.02.2017
of Rs.9,375/- certified by Kotak
Mahindra Bank of Cheque issued by
defendant in favour of the plaintiff.
Exh. 11.
7. Photocopy of cheque dated 29.11.2017
of Rs.1,00,000/- certified by Kotak
Exh. 12
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Judgment in Suit No. 2177 of 2021 4
Mahindra Bank of Cheque issued by
Defendant in favour of plaintiff.
8. Plaintiff’s Advocate’s letter dated
04.12.2019 along with
aknowledgement.
Exh 13
5. The plaintiff close his evidence vide pursis at Exh. 14.
6. Considering the facts, evidence and law applicable to the
case, following points arise for determination of the case:
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that it is
entitled to recover an amount of
Rs.2,50,125/- at the rate of
18% p.a. from the defendants
from the date of the suit?
..Yes Partly..
with interest @
6% p.a
2. Whether the suit is within the
limitation?
..Yes..
3. What order and decree? Suit is partly
decreed.
:REASON:
As to Point No. 1 & 2
7. It is needless to say that as suit proceeded exparte, hence,
the pleading and evidence of the plaintiff has remained unchallenged.
8. The statement of account at Exh.7, Copy of Cheque at
Exh.12 and other documents on record support the case of the plaintiff
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Judgment in Suit No. 2177 of 2021 5
that he had advanced Rs.2,50,000/- to the defendant and the defendant
had made part payment on 29.11.2017. Thus, the plaintiff succeeded to
show that defendant failed to pay Rs.1,50,000/-.
9. It is contention of the Plaintiff that the defendant is liable
to pay interest at the rate of 18% pa. However, no cogent evidence is
adduced on record to fortify his contention. The fact that the defendant
has paid an amount of Rs.9,167/-, Rs.9,375/-, Rs.9,375/-, Rs.9375/- on
31th May, 2016. 6th September, 2016, 13th November 2016 and 27th
February, 2017 against the interest amount cannot be taken into
consideration to infer that the defendant had agreed to pay interest at
the rate of 18% p.a. In such circumstance, considering the nature of
transaction, it would be just and proper to direct the defendant to pay
an interest at the rate of 6% p.a. Considering part payment made by
defendant, the suit is within the limitation. Accordingly, point No. 1 & 2
are answered
10. Non payment of the suit amount led the plaintiff to
institute the suit, hence, the plaintiff would entitle to the cost of the
suit. Accordingly, in answer to point No. 3 following order passed :
ORDER
1. Suit No. 2177 of 2021 is decreed with cost as under :
2. The defendant is ordered to pay an amount of Rs.
1,50,000/- (Rs. One Lakh Fifty Thousand Only) within two
months of the order alongwith interest at the rate of 6% p.a. from
the date of the suit till its realization.
3. Decree be drawn up accordingly.
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Judgment in Suit No. 2177 of 2021 6
4. Suit No.2177 of 2022 is disposed off accordingly.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:18.01.2024 Greater Bombay (CR 59).
Declared on : 18.01.2024
Dictated on : 18.01.2024
Transcribed on : 25.01.2024
Checked on : 29.01.2024.
Signed on :01.02.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.02.2024 at 12.30 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.01.2024
Order signed by P.O. on 01.02.2024
order uploaded on 02.02.2024
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