Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010020142018
Filed on :07.02.2018
Registered On :23.02.2018
Decided on :24.01.2022
Duration : Y-03/M-11/D-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 251 OF 2018
CNR NO.- MHCC01-002014-2018
Exhibit- 07
M/s. Manohar Manak Alloys Pvt. Ltd.
Having address at Manak House Gr. Floor,
44, C.P. Tank Road, Mumbai – 400 004.
... Plaintiff
V/s.
1. M/s. Aditya Capsules Pvt. Ltd.
A2/ 202, Samruddhi Sankul, Mhada Complex,
Civil Lines, Nagpur- 440 001.
Maharashtra.
2. Mr. Rajendra Deoraoji Dhuwadhapar,
an adult aged about 55 years,
Director of M/s. Aditya Capsules Pvt. Ltd.
Residing at Flat No.7, Aadarsh Apartment,
Behind Labour Court , Civil Lines, Nagpur- 440
001,(MS).,
3. Mrs. Alpana Rajendra Dhuwadhapar
an adult aged about 55 years,
Director of M/s. Aditya Capsules Pvt. Ltd.
Residing at Flat No.7, Aadarsh Apartment,
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Behind Labour Court , Civil Lines, Nagpur- 440
001,(MS).,
... Defendants
Appearance:-
Mr. S.R. Maurya Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 24/01/2022
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 defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is a private limited company registered under the
provisions of The Companies Act, 1956. The defendant no.1 is the
Private Limited Company duly registered under the Companies Act,
1956. Defendant nos. 2 and 3 are the directors of defendant no.1
company. They have confirmed in writing to discharge the liability of
defendant no.1 company. Therefore they are jointly and severally liable
to pay the dues of defendant no.1 company. The defendants approached
the plaintiff for advancing a short term loan amount of Rs.25,00,000/-
on the terms and conditions that the defendant shall pay the amount at
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the rate of 24% interest p.a. Accordingly, the amount of Rs.25,00,000/-
was advanced by the plaintiff to the defendants on dtd.24.12.2012
through RTGS from their Bank Account maintained with Union Bank
of India, Bhuleshwar, Mumbai. The same has been duly accepted by the
defendants. They have repaid part sum of Rs.8,50,000/- from time to
time and the balance principal sum of Rs.16,50,000/- remained to be
paid alongwith interest sum of Rs.10,74,300/- at the rate of 12% p.a
only though the defendants promised to pay interest at the rate of 24%
p.a.
3. Further, it is averred that the defendants vide a
confirmation of account for the period of 1.4.2014 to 31.3.2015 have
admitted and acknowledged the balance principal sum of
Rs.16,50,000/- as on dtd. 31.3.2015. But failed to repay said amount
alongwith interest. Hence, the advocates letter dtd. 11.1.2018 was sent
to the defendants. However, even after receipt of letter they avoided to
comply with the requisition thereof. The plaintiff averred that the
defendants are liable to pay the outstanding amount with interest.
4. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are liable to
pay a sum of Rs.27,24,300/- and further interest thereon at the rate of
12% p.a to the plaintiff from the date of suit till its realization. Hence,
this suit.
5. The suit summons were duly served on the defendants 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.
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4. 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 is entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.27,24,300/-with
interest
@12% per annum on
the principal sum.
2. What order and decree? As per final order.
REASONS
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.06 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Extract of Board Resolution dated
9.1.2018
Exh.6/1
2 Statement of Bank Account of Plaintiff
for period of 18.12.2012 to 29.8.2013
Exh.6/2
3 Confirmation of Account for period of
1.4.2012 to 31.3.2015
Exh.6/3
4 Demand Notice dated 11.1.2018 Exh. 6/4
5 Registered Post Receipt dated
11.1.2018
Exh. 6/5
6 Track Reports Exh.6/6
7 Certificate dated 1.11.2020 under sec.
65(b) of Evidence Act.
Exh. 6/7
AS TO POINT NO.1:
6. This is a summary suit which is not contested by the
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defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit regarding service of writ of summons to
the defendants. The documents produced on record by the plaintiff
shows that the defendants received the amount of Rs.25,00,000/- from
the plaintiff through RTGS transaction on dtd. 24.12.2012. They have
made partpayment of Rs.8,50,000/- and duly acknowledged the balance
principal sum of Rs.16,50,000/- as on dtd.31.3.2015. It reveals from
the record that the notice/letter of demand was issued to the defendant
on dtd.11.1.2018 and the suit is filed on 7.2.2018. As such, the
plaintiff’s claim in the suit is well within limitation.
7. All the documents produced by the plaintiff at list Exhibit-
06 goes to establish that plaintiff has advanced sum of Rs.25,00,000/-
to the defendants through RTGS and the defendants failed to repay the
balance amount of Rs.16,50,000/- alongwith interest at the rate of 12%
p.a though received the letter of demand from the plaintiff. Said
amount is not repaid by the defendants. Therefore, defendants are
liable to pay the outstanding amount of Rs.27,24,300/- with the future
interest to the plaintiff. According to the plaintiff the amount of
Rs.27,24,300/- is calculated by them as the outstanding amount by
adding the interest at the rate of 12% p.a. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.27,24,300/- from the defendants.
8. According to the plaintiff the outstanding dues against the
defendants is Rs.27,24,300/- and said amount is calculated alongwith
interest at the rate of 12% p.a till the date of filing of the suit. So the
total outstanding amount is Rs.27,24,300/-. Apart from said amount
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which is due against the defendants on the date of filing of the suit, the
plaintiff has claimed interest at the rate of 12% per annum on the
principal amount. As per section 34 of the Code of Civil Procedure the
rate of interest may exceed 6% per annum, if the transaction is
commercial and there is no contract pertaining to the same between the
parties. In the present case the transaction is a commercial one and
there is no contract existing between the parties as to the rate of
interest which shall be levied. The plaintiff has claimed reasonable rate
of interest on the principal amount which is not disputed by the
defendants, hence defendants are liable to pay the interest at the rate of
12% p.a. Therefore, I hold, the rate of interest at the rate of 12% per
annum would be just and proper to be awarded on the principal sum
adjudged i.e. amount of Rs.27,24,300/-. Hence, point no.1 is answered
in the affirmative.
AS TO POINT NO.2:
9. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.27,24,300/- from the
defendants with interest at the rate of 12% per annum on the principal
sum of Rs.16,50,000/- thereon from the date of filing of the suit till its
realization. Plaintiff is also entitled to recover cost of the suit from the
defendants. Hence, in answer to point no.2, I proceed to pass the
following order:
ORDER
1. The defendants shall pay Rs.27,24,300/-(Rs. Twenty
Seven Lakhs Twenty Four Thousand Three Hundred
Only) to the plaintiff, with interest at the rate of 12%
per annum on the principal sum of Rs.16,50,000/-
from the date of filing of the suit till its realization.
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2. The defendants 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 :24/01/2022 Gr. Bombay
Dictated on : 24.1.2022
Typed on : 24.1.2022
Signed on : 24.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/01/2022 02.00 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
24.1.2022
JUDGMENT/ORDER signed by
P.O.on
24.1.2022
JUDGMENT/ORDER uploaded on 24.1.2022
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