Final Order 1

Order Details: Ex-parte Judgement
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MHCC010018362019
Presented on : 14/02/2019
Registered on : 13/03/2019
Decided on : 06/04/2022
Duration : Y M D
03 01 20
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.336 OF 2021
(SUMMARY SUIT NO.399 OF 2019)
(Ex.10)
Ms. Smita Ambalal Patel,
Aged 63 years,OccupationBusiness,
having her address at 147, Mahatma Gandhi Road,
Temple Bar Building, Second Floor,
Opp. Kala Ghoda, Fort, Mumbai 400 001. ..Plaintiff
VERSUS
Mr. Mangesh Munabhai Chokshi
adult, OccupationBusiness, having his
address at (i) 39, Sanskar Bharti Society,
Near Ankur Bus Sand, Narangpura,
Ahmedabad380013 AND
(ii) Mangesh Manubhai Chokshi
2217, Manek chowk, Chokshi Bazar,
Ahmedabad 380001. ..Defendant
______________________________________________________
Plaintiff in person.
Ld. advocate Rushabh Thacker for defendant.
______________________________________________________
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ORAL ORDER
(Dated this 06th day of April, 2022)
Suit is for recovery of an amount of Rs. 38,43,800/
alongwith future interest at the rate of 18% p.a. from the date of
filing of the suit till it's realization.
Material avernments in the suit may be summarized as
under:
2. Defendant Mangesh Chokshi was a family friend of
plaintiff's parents. DefendantMangesh Chokshi used to take care
of plaintiff like his own sister. In the year 2015, defendant asked
for a friendly loan of Rs.25 lacs and assured to return it within
three months. Defendant further assured to pay interest at the
rate of 18% p.a. in default of returning money within three
months.
3. On 17/02/2016, plaintiff transferred an amount of
Rs.25 lacs by RTGS from her Savings Bank Account
No.23710014834 to defendant's Bank Account No.
010138230009284. Plaintiff made demand of said amount with
defendant from time to time. Upon which, defendant issued five
cheques of Rs.5 lacs each dated 07/11/2017, 08/12/2017,
09/01/2018, 10/02/2018 and 11/03/2018. Plaintiff approached
defendant every time before deposit of cheque, but, defendant
requested plaintiff to wait for sometime. Defendant also assured
to pay the amount with interest @ 18% p.a.
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4. On 28/01/2019, plaintiff visited defendant's home
and made demand of money. Defendant, in presence of his wife
Mrs. Shilpa M.Chokshi and daughterinlaw Mrs. Ishani Darshil
Chokshi, wrote a letter dated 28/01/2019 confirming that an
amount of Rs.25 lacs is outstanding to be paid to plaintiff with
interest. Plaintiff sent notice, through her advocate, on
04/02/2019 to defendant. Said notice was duly served upon
defendant, but, defendant failed to repay the amount. Plaintiff is
entitled to an amount of Rs.25 lacs alongwith interest at the rate
of 18% p.a. as per the particulars set out in the particulars of
claim. By making all these submissions, plaintiff prayed to decree
the suit.
5. After receipt of Writ of Summons on, 03/04/2019,
defendant appeared as contemplated under Order 37 Rule 2(3) of
C.P.C. Thereafter, plaintiff has taken out present Summons for
Judgment.
6. As per order dated 09/12/2021, in Summons for
Judgment No.191/2019, defendant was directed to deposit a sum
of Rs.25 lacs within a period of six weeks. On this condition,
leave to defend the suit was granted to defendant. Record shows
that defendant assailed this order of the Court passed in
Summons for Judgment No.191/2019 before Hon'ble Bombay
High Court by filing Civil Writ Petition No.1696/2022. Hon'ble
Bombay High Court by order dated 23/02/2022, pleased to
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dismiss the Writ petition filed by defendant challenging the order
passed in Summons for Judgment No.191/2019.
7. Defendant failed to comply order dated 09/12/2021
passed in Summons for Judgment No.191/2019. Therefore,
plaintiff applied for passing exparte decree.
8. Heard plaintiff in person.
9. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr. No. Points Findings
1. Does the plaintiff prove that she
advanced a loan of Rs.25 lacs to
defendant?
Proved
2. Whether plaintiff is entitled to
suit amount?
Plaintiff is entitled for
an amount of Rs.25
lacs alongwith interest
at the rate of 12% p.a.
from 17/02/2016 till
it's realization.
3. What order? Suit is partly decreed
as per final order.
REASONS
Point No.1
10. In order to substantiate the claim, plaintiff filed her
claim affidavit at Ex.8 and documents below list Ex.9. The
documents filed on behalf of plaintiff show that plaintiff
transferred an amount of Rs.25 lacs to defendant by RTGS on
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17/02/2016. Plaintiff has filed on record five original cheques
issued by defendant. These cheques show that defendant issued
these cheques towards the repayment of the loan taken from
plaintiff. Plaintiff also relied upon letter dated 28/01/2019
executed by defendant confirming the outstanding amount.
Plaintiff has filed on record said letter alongwith it's true
translation in English. As per letter dated 28/01/2019, defendant
acknowledged in his books of account that he owes an
outstanding amount of Rs.25 lacs to plaintiff. Thus, from the
documents placed before the Court, it is evident that plaintiff
advanced a sum of Rs.25 lacs to defendant on 17/02/2016. Point
No.1 is answered accordingly.
Point No.2
11. Plaintiff claims that she is entitled to the interest at
the rate of 18% p.a. from the date of advancement of loan. By
applying interest at the rate of 18% p.a. to the principal amount
of Rs.25 lacs, plaintiff has claimed an amount of Rs.38,43,800/.
12. Plaintiff claims that defendant has agreed to pay
interest at the rate of 18% p.a. However, there is no written
contract between the parties regarding rate of interest. Plaintiff
relied upon letter dated 28/01/2019 and submits that defendant
agreed to pay the loan amount alongwith interest. However, on
perusal of letter dated 28/01/2019, it is manifestly clear that
defendant has not made any commitment to pay the outstanding
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amount alongwith interest. Thus, from material placed before the
Court, it can be inferred that there was no agreement between the
parties regarding rate of interest to be paid.
13. Plaintiff relied upon following judicial
pronouncements:
(a) Qureshi Brothers V/s State of Maharashtra, 2016
SCC OnLine Bom 1087
In this case, Hon'ble Bombay High Court pleased to
grant interest @ rate of 18% p.a. as there was a commercial
transaction between the parties.
(b) Indian Bank V/s Abyson Rubber Industries,
Kottayam and others, AIR 1995 KERALA 60.
In this case, Hon'ble Kerala High Court pleased to
grant interest @ 16% p.a. However, there was an agreement
between the parties to pay interest at the rate of 18% p.a.
(c) M/s.Wolstenholme International Ltd., V/s Twin
Stars Industrial Corporation and others, AIR 2001 Bom 409.
In this case, Hon'ble Bombay High Court pleased to
grant interest at the rate of 18% p.a. However, said case was
based upon negotiable instrument. Hon'ble Bombay High Court
relied upon Sec.80 of The Negotiable Instruments Act and pleased
to grant interest at the rate of 18% p.a.
(d) Jaideep Halwasiya V/s Rishabh Bengani, 2020
SCC OnLine Cal 2193.
In this case Hon'ble Calcutta High Court pleased to
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hold, "What is astounding is not that an impecunious or dishonest
businessman does not honour a transaction; the alarming feature is
that litigants think that anything would pass muster in Court and
no responsibility is taken on behalf of such dishonest litigants and
their wholesome untruths being parroted in Courts. The only object
of the exercise appears to be to take advantage of the notorious
delay in the judicial system by presenting the illusion of a claim of a
defence where none exists."
However, in said case, Hon'ble Calcutta High Court
pleased to grant interest at the rate of 8% p.a.
14. As discussed above, there is no contract between the
parties regarding rate of interest. In case of Sanjay Kohli V/s
Vikas Shrivastava, 2012 SCC Online Del 2253, Hon'ble Delhi
High Court pleased to hold that in a summary suit, plaintiff is
entitled to include a interest amount even if there is no agreement
between parties to claim any specified interest. In this case,
Hon'ble Delhi High Court awarded interest @ 12% p.a.
Avernments in the plaint show that defendant has taken loan
from plaintiff for business purpose. Thus, the amount taken by
defendant is utilized by him for commercial purpose. Plaintiff is a
senior citizen. She is deprived of the use of money to which she is
legitimately entitled and therefore she has a right to be
compensated for the deprivation. Considering the nature of
transaction, plaintiff is entitled to get interest at the rate of 12%
p.a. from the date of advancement of loan to defendant till it's
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realization. Point No.2 is answered accordingly. In the result,
following order:
ORDER
1. Commercial Suit No.336/2021 is partly decreed with costs.
2. Defendant shall pay an amount of Rs.25,00,000/ (Rupees
Twenty Five Lacs only) to plaintiff alongwith interest @ 12% p.a.
from 17/02/2016 till it’s realization within two months of this
order.
3. Court fees be refunded as per (E) Rules framed under Section
11(2) of the Bombay City Civil Court Act, 1948, for the refund of
Institution Fee.
4. Decree thus follow.
06/04/2022 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 06/04/2022
Transcribed on : 07/04/2022
Signed on : 11/04/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
11/04/22 at 03.10 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
06/04/22
Judgment and order signed by P.O. 11/04/22
Judgment/order uploaded on 11/04/22
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