Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010016522018
Presented on 31-01-2018
Registered on 01-03-2018
Decided on 13-02-2023
Duration Yrs. M. Days
05 00 13
EXHIBIT: 07
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER MUMBAI
SUMMARY SUIT NO.272 OF 2018
Amrit Nandlal Talreja,
adult, Indian Inhabitant of Bombay, aged 31
years, carrying on Business at 34, Dariya
Mahal, A, 80, Nepeansea Road, Mumbai- 400
006.
...Plaintiff
VERSUS
1. RSG Infotech (P) Ltd.
A Company registered under the Companies
Act, 1956, carrying on business at 1st Floor,
Maina Gul Building, Ceaser Road, Amboli,
Andheri (West) Mumbai-400 058.
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2. Jyoti Achary
Adult Indian Inhabitant of Mumbai, Age and
full name not known, Residing at A-403,
Orchid Valley of Flowers, Thakur Village,
Kandivali (East), Mumbai- 400 101.
3. Anil Achary
Adult Indian Inhabitant of Mumbai, Age and
full name not known, Residing at A-403,
Orchid Valley of Flowers, Thakur Village,
Kandivali (East), Mumbai- 400 101.
( Defendant Nos.2 and 3 carry on business at
the address of the Defendant No.1.
...Defendants
Appearance :
Ld. Adv. Ms. Kavita Lalwani for plaintiff.
Defendants absent (
Exparte).
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 13/02/2023.
JUDGMENT
(Dictated and pronounced in Open Court)
This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil Procedure, 1908 (for short 'CPC') for recovery of principal sum
Rs.75,000/- against defendants along with interest thereon at the rate
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of 18% per annum (p.a) from the date of filing of the suit till its
realization.
Plaintiff’s case-
2. Plaintiff claims to have advanced a sum of Rs. 2 lakhs in
favour of defendant No.1 and against the same, defendant No.1 issued
a Bill of Exchange in favour of the plaintiff on 16-12-2015. The said Bill
of Exchange is accepted and endorsed by defendant Nos. 2 and 3.
3. Plaintiff contends that defendants, from time to time, have
repaid an amount of Rs. 1,25,000/-. The last installment of part
payment is received by plaintiff on 04-08-2017 by way of NEFT.
Defendants had issued Cheuqe of Rs. 75,000/- bearing No. 117868
dated 08-11-2017, in favour of plaintiff. When plaintiff tried to encash
the same, it was dishonoured for the reason “Funds Insufficient”.
4. Plaintiff issued a demand Notice on 17-11-2017 and called
upon defendants to repay the outstanding amount of Rs.75,000/- along
with interest at the rate of 18% p.a. Despite receipt of the notice,
defendants failed to pay the said amount. Hence plaintiff has
approached this Court seeking recovery of the said amount.
5. Plaintiff had filed Summons for Judgment as per sub rule
(4) of rule 2 of Order XXXVII of CPC. Despite the service of the
Summons for Judgment, defendants failed to file reply and thereby
further failed to seek leave to defend. Therefore, suit proceeded
exparte/without further participation of the defendants.
6. So as to prove the claim, plaintiff has filed claim affidavit at
Exh. 4 and reiterated the claim. Plaintiff also placed on record the
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original Bill of Exchange at Exh. 5 and the office copy of the demand
notice dated 17-11-2017 at Exh.6 along with proof of its service.
7. Ld. Adv. for plaintiff submits that as defendants failed to
seek leave to defend, in view of Rule 3 (6) of Order XXXVII, plaintiff is
entitled for decree. She further submits that plaintiff’s case is based
upon dishonored Bill of Exchange. The original dishonoured Bill of
Exchange and the demand notice is placed on record. As defendants
failed to pay the outstanding amount, suit be decreed.
8. Sub rule (6) of rule 3 of order XXXVII of CPC stipulates that
if defendant fails to apply for leave to defend, plaintiff shall be entitled
to judgment forthwith. In matter in hand, as defendants failed to file
reply/leave to defend, naturally plaintiff is entitled for the judgment.
9. Apart from the aforesaid statutory benefit, plaintiff has
further filed claim affidavit and has reiterated the claim. The original
Bill of Exchange is placed on record. The contention of plaintiff that he
has received part payment of Rs. 1,25,000/-, is not disputed. The last
installment of part payment is dated 04-08-2017, therefore the suit is
well within limitation. As such, there is no
contra evidence to dispute
the claim raised by the plaintiff. Therefore, I hold that the plaintiff is
entitled for recovery of principal amount.
10. Ld. advocate Ms. Kavita Lalwani for plaintiff submits that
as the suit is based on negotiable instrument therefore interest at the
rate of 18% be awarded. Admittedly, there is nothing on record to infer
about the term as to the payment of interest by the defendants.
However, considering the fact that the amount of plaintiff is withhold
by the defendants since considerable time, plaintiff deserves reasonable
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interest from the date of filing of the suit. Considering over all facts and
circumstances of the case, I find awarding interest at the rate of 9% p.a.
from the date of filing of the suit, would meet ends of justice. Hence,
the order.
ORDER
1. Summary Suit No. 272 of 2018 is partly decreed with costs.
2. Defendants, jointly and severally, shall pay an amount of
Rs. 75,000/- (Rupees Seventy Five Thousand only) to the plaintiff
along with interest at the rate of 09 % p.a. from the date of filing of
the suit i.e. 31-01-2018, till realization of entire amount.
3. In view of the aforesaid order, Summons for Judgment No.235 of
2018 stands disposed of.
4. Court fees be refunded to the plaintiff, as per rules.
5. Decree be drawn up accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 13-02-2023 Court Room No.61
Dictated on : 13-02-2023
Printed on : 16-02-2023
Corrected & signed on : 17-02-2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20-02-2023 at 5.45p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S. D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
13-02-2023
JUDGMENT/ORDER signed by P. O. on 17-02-2023
JUDGMENT/ORDER uploaded on 20-02-2023
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