Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.256/2018
Received on : 31.01.2018
Registered on : 01.03.2018
Decided on : 04.01.2019
Duration : Y M D
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 256 OF 2018
CNR NO.: MHCC010016632018
Exh.11
Varsha Gopal Talreja ]
Adult, Indian Inhabitant of Bombay, aged ]
53 years, carrying on Business at 34, ]
Dariya Mahal, A, 80, Nepeansea Road, ]
Mumbai – 400 006. ]...Plaintiff.
V/s.
1. M/s. Alpesh Marbles Pvt. Ltd., ]
A Company registered under the ]
Companies Act, 1956, carrying ]
on business at B/103, Sheetal ]
Apartment, Jayprakash Market ]
Road, Khau Gali, Bhayander (W) ]
Thane – 401 101.
And at
32, P. D'Mello Road, Near Jai Centre ]
Wadi Bunder, Mumbai – 400 009. ]
2. Indermal Jayantilal Jain ]
Adult, Indian Inhabitant, ]
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Age not known ]
carrying on business at ]
B/103, Sheetal ]
Apartment, Jayprakash Market ]
Road, Khau Gali, Bhayander (W), ]
Thane – 401 101. ]
And at
32, P. D'Mello Raod, Near Jain Centre ]
Wadi Bunder, Mumbai – 400 009. ]
3. Madhu Indermal Jain ]
Adult, Indian Inhabitant, ]
Age not known ]
carrying on business at ]
B/103, Sheetal ]
Apartment, Jayprakash Market ]
Road Khau Gali, Bhayander (W), ]
Thane – 401 101. ]
And at
32, P. D'Mello Road, Near Jai Centre ]
Wadi Bunder, Mumbai – 400 009. ] ...Defendants.
Appearances:
Advocate Ms. Kavita S. Lalwani for the plaintiff.
Defendants exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.9)
DATED : 4th JANUARY, 2019.
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[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Defendant No.1 is a Company registered under the Indian
Companies Act, 1956. On 28.11.2016, the defendant No.1 for valuable
consideration drew a Demand Bill of Exchange on defendant Nos. 2 and
3 in favour of the plaintiff for the sum of Rs. 4,00,000/. Plaintiff has
further stated that, the Demand Bill of Exchange was accepted by the
defendant Nos. 2 and 3 for payment. Plaintiff has advanced the said
sum of Rs.4,00,000/ to the defendants by cheque bearing No.045769
dated 24.11.2016 for Rs. 4,00,000/ On receipt of the cheque,
defendants have executed the Demand Bill of Exchange for Rs.
4,00,000/. Plaintiff has further stated that defendants have made part
payment of Rs.66,667/ on 12.01.2017. Plaintiff has further stated that,
defendants on their own accord paid interest by cheque.
2. Plaintiff thereafter on 29.05.2017 presented the said Demand Bill
of Exchange for the balance sum of Rs. 3,33,333/ to the defendant
Nos. 2 and 3 and then to the defendant No.1 for payment but all the
defendants dishonoured the said Demand Bill of Exchange for the
balance sum of Rs. 3,33,333/ and promised to pay the amount within a
short time. Plaintiff has further stated that defendants towards
repayment of the balance amount issued bearing cheque No.181909
drawn on ICICI Bank in favour of plaintiff and assured that the said
cheque will be honoured. Plaintiff has further stated that when the
cheque was presented for encashment to the Bank it was dishonoured
for the reason “Payment stopped by the Drawer”. Plaintiff has further
stated that thereafter on several occasions he called upon the
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defendants to pay the balance sum of Rs. 3,33,333/ alongwith interest
@ 18% p.a. Plaintiff issued Demand Notice on defendants calling upon
them to pay balance sum of Rs. 3,33,333/ with interest, but defendants
neither replied the Notice nor paid amount. Plaintiff prayed that
defendants be directed to pay Rs. 3,73,333/ alongwith further interest
on Rs.3,33,333/ @ 18% p.a.
3. Though defendant Nos. 1 to 3 legally served with summons but
failed to appear. Therefore, matter has proceeded exparte against
them.
4. Heard the Ld. Advocate for the plaintiff.
5. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether the plaintiff is entitled to get
Rs. 3,73,333/ alongwith further
interest on the sum of Rs. 3,33,333/
@ 18% p.a. from the date of filing of
the suit till its realization ?
...Partly in the
affirmative.
2. What Order ? ...As per final order
R E A S O N S
6. Plaintiff has filed affidavit of evidence in lieu of
examination in chief of Gopal Kanayalal Talreja (P.W.1) below Exh.7.
Plaintiff relied upon the following documents as documentary evidence
which are as under :
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Sr.
No.
Exhibits Particulars
1. Exh.9 Demand Bill of Exchange dated 28.11.2016 of
Rs. 4,00,000/
2. Exh.10 Plaintiff's Advocate's letter dated 02.11.2017
alongwith Acknowledgement.
AS TO POINT NOS. 1 AND 2:
7. Gopal Kanayalal Talreja (P.W.1) has stated in his evidence
filed in lieu of examination chief below Exh.7 that on 28.11.2016, the
defendant No.1 drew Demand Bill of Exchange on defendant Nos.2 and
3 for the sum of Rs. 4,00,000/ in favour of plaintiff. Plaintiff has
adduced Original Bill of Exchange Exh.9. He has further stated that, the
Director of defendant No.1 has signed the Bill of Exchange as a Drawer
of the Demand Bill of Exchange and defendant Nos. 2 and 3 have
signed the Bill of Exchange as Acceptors of the Demand Bill of Exchange
in the presence of the plaintiff and he, and he identified the signatures
of the defendants. In the present suit defendant failed to appear and
apply for leave to defend. Therefore, averment of plaintiff in the plaint
and evidence of P.W.1 Gopal Talreja has remained unchallenged. The
oral evidence of P.W.1 Gopal Kanayalal Talreja coupled with the
documentary evidence i.e. Bill of Exchange Exh.9 proved that the
defendant No.1 drew the Demand Bill of Exchange and defendant Nos.
2 and 3 accepted the same issued in favour of plaintiff.
8. Gopal Kanayalal Talreja (P.W.1) has further stated in his affidavit
of evidence that defendants have made part payment of Rs. 66,667/ by
NEFT on 12.01.2017. He has further stated that on 29.05.2017, he
presented the said Demand Bill of Exchange to the defendant Nos. 2
and 3 and then to the defendant No.1 for payment but all the
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defendants dishonoured the same. Defendant Nos. 1 to 3 have failed to
appear and challenge this averment of plaintiff in the plaint and cross
examine the plaintiff on this point. Therefore, averment in the plaint
and evidence of P.W.1 Gopal Kanayalal Talreja on this point has
remained unchallenged. The evidence of plaintiff therefore, inspire
confidence. It proves that though plaintiff demanded on 29.05.2017 the
sum due under Bill of Exchange he was not paid the same. Plaintiff has
further stated that for amount due under the Bill of Exchange defendant
issued a cheque bearing No.181909 dated 18.05.2017 in favour of
plaintiff but it was dishonoured and therefore, plaintiff issued a letter
on 2.11.2017 calling upon defendants to pay balance amount @ 18%
p.a. All these averment in the plaint and oral evidence of P.W.1 Gopal
Kanayalal Talreja and documentary evidence has remained
unchallenged. Therefore, it proves that plaintiff issued letter calling
upon defendants to pay money due under the Bill of Exchange on
02.11.2017 also but he was not paid the same. Therefore, plaintiff is
entitled to get money due under the Bill of Exchange from all
defendants.
9. Plaintiff is claiming interest @ 18% p.a. on the sum due. It
appears that @ 18% will be huge interest to be given to plaintiff. It
appears that 18% was not agreed interest between the parties. Hence, it
will proper to award interest @ 9% p.a. to plaintiff on the amount due.
Therefore, plaintiff is entitled to get Rs.3,53,333/ from defendant.
Plaintiff is further entitled to get the interest @ 9% p.a. on principal
amount of Rs.3,33,333/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
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ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 to 3 are jointly directed to pay the sum of Rs.
3,53,333/ to plaintiff alongwith interest @ 9% p.a. on the
amount of Rs. 3,33,333/ from the date of filing of the suit till its
realisation.
3. Decree be drawn up accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 04.01.2019. City Civil Court,
Gr. Bombay.
Dictated on : 04.01.2019
Transcribed on : 04.01.2019
Signed on : 04.01.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.01.2019 At 11:17 a.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.09)
Date of pronouncement of
Judgment/Order
04.01.2019
Judgment/Order signed by P.O. on 04.01.2019
Judgment/Order uploaded on 09.01.2019
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