Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. S. C. Suit No.880/2020
MHCC010014272020 Presented on : 01/02/2020
Registered on : 21/02/2020
Decided on : 26/09/2023
Duration : 03Y 07M 26D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.17
S. C. SUIT NO.880 OF 2020
Amar Bhagwandas Dodeja,
Adult, Indian Inhabitant, residing at 1903,
Whitefield Chs Ltd., Hiranandani meadows,
Gladys Alwaris road, Thane West, 400 610.
]
]
]
] ..Plaintiff
V/s.
Meena B. Upadhyay,
Adult, Indian Inhabitant of Bombay,
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.
]
]
]
]
]
] ..Defendant
Appearance :-
Ms. Kavita Lalwani, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 26/09/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.3,40,000/-. The plaintiff has come with the case that he paid
Rs.2,50,000/- to the defendant by cheque on 23/05/2016 bearing
-- 1 of 5 --
..2.. S. C. Suit No.880/2020
No.000054 drawn on Kotak, Kotak Mahindra Bank, Thane. It is his
contention that the amount was debited from his bank account and
credited to the defendant’s account. The plaintiff stated that defendant
promised to execute a demand bill of exchange, but failed to do the
same. He further contended that defendant paid interest of
Rs.37,292/-. Thereafter, on 15/01/2018 plaintiff called upon
defendant to pay the sum of Rs.2,50,000/- under the cheque alongwith
interest at the rate of 18% per annum, but the defendant did not pay.
Ultimately, plaintiff issued notice to the defendant on 04/12/2019
calling her to pay the amount of Rs.2,50,000/- alongwith interest at
18% per annum, hence, this suit.
2 The writ of summons is served upon defendant vide
Exhibit-05, but she failed to appear before this Court, hence suit is
proceeded ex-parte against defendant vide order in
roznama dated
21/09/2021.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that he paid an
amount of Rs.2,50,000/- to the
defendant by cheque ?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
-- 2 of 5 --
..3.. S. C. Suit No.880/2020
R E A S O N S
4 In order to substantiate the contentions, the plaintiff
entered into the witness box and relied on various documents (Exhibit-
09 to 15) under list (Exhibit-08). Heard learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The plaintiff has tendered his Claim Affidavit (Exhibit-07)
alongwith documents as per list (Exhibit-08). On perusal of cheque, it
reveals that it bears signature of the defendant. It is stated on record
that defendant paid interest of Rs.37,292/- to the plaintiff. On perusal
of statement of account and copies of cheques issued by the defendant,
hence, contention of plaintiff appears to be correct. Inconsequence of
failure to pay the amount of Rs.2,50,000/- under the cheque, the
plaintiff has issued a notice on 04/12/2019. Hence, the plaintiff is
entitled for recovery of amount of Rs.2,50,000/- under the cheque.
There is no reason to disbelieve the contention 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 The absence and omission of defendant to appear before
the Court on being served with the writ of summons shows that she
has no substantial defence and has admitted the claim of plaintiff.
Therefore, the plaintiff is entitled to recover the amount of
Rs.2,50,000/- under the cheque.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant, however, I
am of the view that it is exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
-- 3 of 5 --
..4.. S. C. Suit No.880/2020
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. notice
of advocate for plaintiff dated 04/12/2019, till its full realisation. In
view of above discussions, I answer point No.1 in affirmative and point
Nos.2 and 3 in partly affirmative.
8 As the defendant has made plaintiff constrained to file the
suit, she is also liable to pay the costs. In the result, proceed to pass the
following order :-
ORDER
1. S. C. Suit No.880/2020, is hereby partly decreed with
costs.
2. Plaintiff is entitled to recover an amount of
Rs.2,50,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice of
advocate of plaintiff dated 04/12/2019, till its full
realisation, from defendants.
3. Decree be drawn up accordingly.
4. Court fees, if any, be refunded as per rule.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 26/09/2023 C.R. No.15
Directly typed on : 26/09/2023
Draft corrected on : 26/09/2023
Signed on : 29/09/2023
-- 4 of 5 --
..5.. S. C. Suit No.880/2020
“Certified to be true and correct copy of the original signed order”.
30/09/2023
at about 03.10 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.15, Gr. Mumbai
Date of pronouncement of Order : 26/09/2023
Order signed by Hon'ble Judge on : 29/09/2023
Order uploaded on : 30/09/2023
at about 03.10 p.m.
-- 5 of 5 --