Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :25.01.2018
Registered On :25.02.2018
Decided on :03.12.2021
Duration : Y-03/M-01/D-19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 237 OF 2018
CNR NO.- MHCC01-001439-2018
Exhibit -04
Vinod Rajnaryan Pandey
Indian Inhabitant of Mumbai
Age: 55 Years, Occ: Business,
Residing At: 45/46, Deval Building,
11th Lane, Kamathipura, Mumbai- 400 008. ... Plaintiff
V/s.
1. Adish Bhawarlal Jain
Age and Occupation : Not known.
2. Bhawarlal Jain
Age & Occupation : Not known.
Both residing at 142/F, Lalbaug Temple,
3rd Floor, Room No. 55,
Bhuleshwar Road,
Mumbai- 400 002.
... Defendants
Appearance:-
Mr. Rajnish Dubey Advocate for the plaintiff.
Exparte against Defendants.
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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 and defendants are acquainted with each other. They
developed good friendship. The defendants approached the plaintiff
representing to him that they are in need of Rs.6,00,000/- for
investment in their business of imitation Jewelllary at their own
premises ie. Shop no. 111/113, Chandani Stree, Bhoiwada, Bhueshwar,
Mumbai. It is agreed that the defendants will repay said amount by
installments of Rs.60,000/- per month and the defendants would induct
the plaintiff as a partner in their business. The defendant no.1 executed
Promissory note to that effect. However, they had no intention to repay
the amount. The plaintiff gave notice by letter dtd. 22.1.2015 calling
upon them to repay his money with profit share which was parted with
based on their false assurances. The defendants measurably failed to
comply with the notice. The plaintiff averred that the defendants are
liable jointly and severally liable to pay the outstanding amount of
Rs.6,00,000/- as per the Promissory Note.
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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.6,00,000/- to the plaintiff. Hence,
this suit.
4. The suit summons were duly served on the defendant nos.1
and 2 but they failed to appear. 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 as claimed?
Amount of
Rs.6,00,000/- .
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has
tendered his affidavit of examination in chief below Exh.02. Further, he
produced following documentary evidence below Exh.03 i.e the list of
documents:
Sr.
No.
Description of documents
1 Original Promissory Note executed by the Defendant
no.1
2 Office copy of letter dated 22.1.2015 alongwith the
postal receipts and acknowledgment card (Colly)
3 Office copy of written complaint dated 8.10.2015 by
the plaintiff
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Summ. Suit No.237/2018
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Sr.
No.
Description of documents
4 Office copy f Notice dtd. 19.12.2015 by the plaintiff
through his advocate to the Deputy Commissioner of
Police
5 Complaint filed by me in the Metropolitan Magistrate
Court, Mumbai alongwith the Order Dtd. 21.7.2017.
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit regarding service of writ of summons to
the defendants. None appeared. The documents produced on record
by the plaintiff shows that the defendants received the amount of
Rs.6,00,000/- from the plaintiff drawing the Promissory Note in which
the defendants agreed to pay sum of Rs.6,00,000/- with profit at the
rate of 10% per month i.e Rs.60,000/- per month to the plaintiff.
Further, it reveals from the record the said transaction took place on
dtd.4.11.2013, the notice/letter of demand was issued to the
defendants on dtd. 22.1.2015 and the suit is filed on 25.01.2018. As
such, the plaintiff’s claim in the suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
03 goes to establish that plaintiff has given amount of Rs.6,00,000/- to
the defendants on Promissory Note. Said amount is not repaid either by
the defendant no.1 or by defendant no.2. Neither they paid the
principal amount nor the profit. The plaintiff has claimed the principal
amount only to which he is legally entitled by virtue of the Promissory
note dtd. 4.11.2013. Hence, I hold that both the defendants are liable
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jointly and severally to pay the outstanding amount of Rs.6,00,000/- to
the plaintiff. In this background, I have arrived at the conclusion that
the plaintiff is entitled to recover sum of Rs.6,00,000/- from the
defendants jointly and severally. Hence, point no.1 is answered in the
affirmative.
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.6,00,000/-from the defendant
nos. 1 and 2 jointly and severally. 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 and 2 shall pay Rs.6,00,000/-
(Rs. Six Lakhs only) to the plaintiff jointly and
severally.
2. The defendant nos. 1 and 2 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 1.00 p.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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