Final Order 1

Order Details: Other
Pdf Text: ..1.. Summary for Judgment No.45/2021
MHCC010029402021 Presented on : 23/03/2021
Registered on : 23/03/2021
Decided on : 01/07/2024
Duration : 03Y 03M 10D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.45 OF 2021
(CNR NO.MHCC01-002940-2021)
IN
SUMMARY SUIT NO.199 OF 2018
1. Mr. Firoz Hakimuddin Jawadwala
An adult, Muslim, Indian Inhabitant,
Occupation : Business.
2. Mrs. Yasmin Firoz Jawadwala,
an adult, Muslim, Indian Inhabitant,
Occupation : housewife,
Both are presently residing at Room No.29,
3rd floor, Adamji Peerbhoy Building, 91,
Pakmodiya Street, Mumbai – 400 003.
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VERSUS
1. Mr. Zafar Ahmed Siddiqui,
An adult, Muslim, Indian Inhabitant,
Occupation : Business, an officer and authorized
signatory of M/s. Sky High Realtors &
Developers having address at 3/2, Municipal
Chawl, 71, Morland Road, Agripada,
Mumbai – 400 008.
2. M/s. Sky High Realtors & Developers, A firm
having address at 3/2, Municipal Chawl,
situate at 71, Morland Road, Agripada,
Mumbai – 400 008.
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..2.. Summary for Judgment No.45/2021
Appearance :-
Learned Advocate Muhammed Iftikhar Ali for plaintiffs.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 01/07/2024.
O R D E R
1 This summary suit is filed for recovery of amount
contending that plaintiffs are spouses. Defendant No.1 is the
authorized signatory of defendant No.2. Defendants have agreed to sell
the flat to the plaintiffs and issued the allotment letter dated
01/03/2012 in respect of flat No.1703, 17th floor, bearing
Survey No.1186 and 1187 of Byculla Division, E-Ward, Nagpada,
Mumbai – 400 008. The flat was admeasuring area of 750 sq.ft. and
the total consideration was agreed to Rs.35,50,000/-. The defendants
failed to comply the requisition mentioned in the allotment letter and
demanded more amount, thus, plaintiffs have paid Rs.47,50,000/-.
Defendants have issued receipt of the same on 03/03/2014. Plaintiffs
have paid the part amount through cheque and part amount by cash.
Defendants failed to comply the agreement and allotment letter,
therefore, plaintiffs became constrained to file this suit for recovery of
amount.
2 The defendants were permitted to tender their appearance
as per the order dated 09/12/2019 passed in notice of motion No.4518
of 2018 and No.4519/2018. Thereafter, the plaintiffs have taken out
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..3.. Summary for Judgment No.45/2021
instant summons for judgment on 23/03/2021 for passing decree in its
favour. The summons for judgment was served upon defendants, but
they failed to file reply, hence, summons for judgment is proceeded
further. It appears that defendant No.1 has signed on behalf of
defendant No.2 on the vakalatnama vide Exhibit-08, this fact proves
that defendant No.1 entered into the transaction for defendant No.2
and executed the receipt at Exhibit-10.
3 Plaintiff No.1 tendered his affidavit of evidence
(Exhibit-06) alongwith documents as per list (Exhibit-07). Heard
learned advocate for plaintiff.
4 The evidence adduced by the plaintiffs remain
unchallenged. It reveals from the record that plaintiffs have tendered
original receipt (Exhibit-10) of Rs.47,50,000/- dated 03/03/2014
alongwith letter of allotment (Exhibit-09) dated 01/03/2012, it bears
signature and rubber stamp of the defendants and signature of plaintiff
No.1. Plaintiffs have also filed receipt No.1 (Exhibit-11) dated
03/03/2012 for Rs.2,00,000/-, receipt No.2 (Exhibit-12) dated
10/05/2012 for Rs.2,00,000/-, receipt No.3 (Exhibit-13) dated
21/05/2012 for Rs.2,50,000/- alongwith receipt No.4 (Exhibit-14)
dated 30/10/2013 for Rs.7,00,000/- and receipt (Exhibit-15) dated
30/10/2013 for Rs.2,00,000/-, all bearing signature and rubber stamp
of defendants and signature of plaintiff No.1. Inconsequence of failure
to pay the amount, the plaintiffs have issued a notice, but in vain.
Thus, the plaintiffs are entitled for recovery of amount of
Rs.47,50,000/-.
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..4.. Summary for Judgment No.45/2021
5 The omission on the part of the defendants to proceed
with the suit and to raise defence shows that the defendants have no
good defence to challenge the claim of plaintiffs and as per the
provisions of Order XXXVII Rule 2(3) of the Code of Civil Procedure,
plaintiffs are entitled for decree of amount under the receipt.
6 So far as interest is concerned, the plaintiffs are claiming
interest at the rate of 18% per annum from the defendants, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiffs have suffered loss in business and profit, due to failure to
repay the amount by the defendants. Had it been paid to the plaintiffs
as per demand, they would have invested and would have earned
profit therefrom. Therefore, I am of the view that the plaintiffs are
entitled for interest at the rate of 9% per annum from date of filing of
the suit till its full realisation.
7 As the defendants have made plaintiffs 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. Summons for Judgment No.45 of 2021 in Summary
Suit No.199 of 2018, is hereby allowed.
2. Summary Suit No.199 of 2018, stands partly decreed
with costs.
3. Defendants are directed to pay the plaintiffs sum of
Rs.47,50,000/- alongwith interest at the rate of 9%
per annum from the date of filing of the suit till its
full realisation.
4. Decree be drawn up accordingly.
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..5.. Summary for Judgment No.45/2021
5. Court fees, if any, be refunded as per rule.
6. Summons for Judgment disposed of accordingly.
(Order dictated and pronounced in open Court)
( Shaikh Akbar Shaikh Jafar )
Judge, City Civil Court, Mazgaon,
Mumbai, C.R. No.84.
Date: 01/07/2024.
Dictated and typed on : 01/07/2024.
Signed by HHJ on :
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..6.. Summary for Judgment No.45/2021
“Certified to be true and correct copy of the original signed order”.
06/07/2024
at about 12.00 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 : 01/07/2024
Order signed by Hon'ble Judge on : 05/07/2024
Order uploaded on : 06/07/2024
at about 12.00 p.m.
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