Order 1

Order Details: Other
Pdf Text: MHCC010020642018 Presented on 08/02/2018
Registered on 08/02/2018
Decided on 03/12/2025
Duration 07Y: 09M: 25D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 43 OF 2018
IN
SUMMARY SUIT NO.22 OF 2017
Manoharlal Hardasmal Kakwani ]
Age 60 yrs of Mumbai, an adult ]
Indian Inhabitant, residing at 17/4, ]
Prabhu Niwas, R.A. Kidwai Road, ]
Wadala, Mumbai-400 031. ]...Plaintiff
VERSUS ]
1. National Limination ]
a Firms carrying on ]
business at and from 209, Sangam ]
Arcade Vallabbhai Road, Vile Parle ]
(West), Mumbai-400 056. ]
2. Kanch Ghar ]
A Partnership Firm carrying on ]
business at and from Shop No.1, ]
Abhishek Bldg., Vallabhbhai Road, ]
Vile Parle (W), Mumbai-400 056. ]
3. Shantilal Shah ]
4. Laljibhai Shah ]
5. Subhash Shah ]
6. Forum Shah ]
Age and full name not known ]
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All are Mumbai an adult Indian ]
inhabitant partners of Kanch Ghar ]
and carrying on business at and from ]
shop No.1, Abhishek Bldg., Vallabhbhai ]
Road, Vile Parle (West), Mumbai-400 056 ]
and residing at 208, Sangam Arcade, ]
2nd Floor, Opp.Rly. Station, Vallabha ]
Bhai Road, Vile Parle (West), ]
Mumbai-400 056. ]
7. Jayantilal Nisar ]
Age and full name not known ]
All are Mumbai an adult Indian ]
inhabitant, partners of National Limination ]
and carrying on business at and from ]
business at and from 208, Sangam Arcade, ]
2nd Floor, Opp.Rly. Station, Vallabh Bhai ]
Road, Vile Parle (West), Mumbai-400 056. ]..Defendants
Appearance:-
Ld. Adv. Mr. Ramesh Jain for plaintiff.
Defendants absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 03/12/2025.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 05/02/2018. Defendants have failed to file reply to the
summons for judgment. Hence, order was passed on 18/07/2018 to
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proceed without reply of defendants to the summons for judgment.
Brief facts of plaintiff’s case may be summarized as under :
02] As per the plaintiff, defendant No. 1 is the Partnership
Firm and defendant No. 7 is Partner and also person in-charge of day
to day affairs of defendant No.1. Defendant No. 2 is also Partnership
Firms and defendants Nos. 3 to 6 are the partners and also person in
charge of day to day affairs of defendant No.2. Further, defendants
approached to the plaintiff in the month of December 2013 for
extending financial assistance by way of business loan. Therefore,
plaintiff advanced financial assistance by cheque bearing No. 488001
dated 26/12/2013 and cheque No. 488002 dated 26/12/2013 drawn
on Indusind Bank Mumbai for an amount of Rs. 1,50,000/- and
Rs. 1,00,000/- respectively to the defendants. Defendant No.1 for
valuable consideration executed bill of exchange on 26/12/2013 on
defendant No. 2 and in favour of plaintiff. Defendants agreed to pay
interest at the rate of 1% p.m. and accordingly paid interest from time
to time. Defendants lastly paid interest upto 30/09/2014 after
deducting TDS by cheque. On 01/10/2014, plaintiff presented bill of
exchange to defendant No.2 and demanded payment of bill of
exchange. Defendants failed to pay said amount and dishonoured bill
of exchange. Therefore, plaintiff issued notice dated 20/10/2016
through advocate and called upon defendants to pay an amount of
Rs. 2,50,000/- including interest at the rate of 18% p.a. Defendants
failed to pay amount of Rs. 3,15,096/- (Rs. 3,15,095.89 ps rounded off
to Rs.3,15,096/-). It is submitted on behalf of the plaintiff that
defendants failed to file reply to summons for judgment. Therefore,
Plaintiff is entitled for judgment.
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03] Defendants appeared in the matter. Thereafter, plaintiff
has taken out summons for judgment No. 43/2018. Defendants failed
to file reply to the summons for judgment. Therefore, plaintiff is
entitled for judgment in view of Order XXXVII, Rule 3 (6)(a) of Civil
Procedure Code.
04] The plaintiff to prove his contention has filed original
documents on record vide list Exh. 5.
Sr.
No. Exhibit Particulars
1 Exh. 5/1 A bill of exchange dated 26/12/2013.
2 Exh. 5/2 Plaintiff’s advocate letter dated 20/10/2016 along
with the postal records.
05] Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
which my findings are recorded for reasons given below.
Sr.
No.
Points Findings
1. Whether the plaintiff is
entitled to recover amount
of Rs.3,15,096/- from
defendants ? If yes, at what
rate of interest ?
Yes, The plaintiff is entitled for simple
interest on amount of Rs. 2,50,000/- at
the rate of 7% p.a. from 09/12/2016
i.e. the date of filing the suit till its full
realization.
2. What order and decree? As per final order.
R E A S O N S
As to Points No. 1 and 2 :-
06] Perused plaint, documents and evidence on record. Heard
Ld counsel for the plaintiff. Defendants failed to argue the matter. As
per plaintiff, defendant No. 1 is the Partnership Firm and defendant
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No. 7 is its partner. Further defendant No. 2 is the Partnership Firm
and defendants No. 3 to 6 are its partners. In the month of December
2013 defendant No.1 approached for financial help for business.
Therefore, plaintiff advanced an amount of Rs. 2,50,000/- by way of
two cheques bearing No. 488001 and cheque No.488002, dated
26/12/2013 drawn on Indusind Bank, Mumbai for sum of
Rs. 1,50,000/- and Rs. 1,00,000/- respectively. Further, on the same
day for valuable consideration defendant No.1 executed bill of
exchange on defendant No. 2 for sum of Rs. 2,50,000/- and in favour
of plaintiff. It is pertinent to note that plaintiff has not filed any
document to show that he had advanced an amount of Rs. 2,50,000/-
to defendant No. 1 by way of two cheques. However, plaintiff has filed
original bill of exchange on record vide List Exh. 5/1. On perusing
said bill of exchange, it appears that it bears seal of defendant No. 1
and signature of defendant No. 7 as a partner. It also bears seal of
defendant No. 2 and signature as a partner. Further, there is reference
of aforesaid cheques on the bill of exchange. Thus, on perusing said
bill of exchange, it appears that defendant No. 1 borrowed an amount
of Rs. 2,50,000/- from the plaintiff. Further, it appears that defendant
No. 2 has signed it as acceptor.
07] It is the contention of plaintiff that defendant No. 1
agreed to pay interest at the rate of 1% p.m. on the said amount and
paid interest upto 30/09/2014 after deducting TDS. It is pertinent to
note that plaintiff has not produced any documentary evidence to
show that defendant No. 1 had agreed to pay interest at the rate of 1%
p.m. and accordingly interest paid upto 30/09/2014. However, as
defendant No. 1 failed to pay an amount of Rs. 2,50,000/- therefore,
plaintiff presented bill of exchange to defendant No. 2 and thereafter
on defendant No. 1. They dishonoured said bill of exchange, as they
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failed and neglected to pay the amount of bill of exchange. Therefore,
plaintiff issued notice dated 20/10/2016 to defendants No. 1, 2, 3 and
7 and called upon them to make the payment of Rs. 2,50,000/- with
interest at the rate of 18% p.a. Plaintiff has filed office copy of said
notice on record vide List Exh. 5/2. There is nothing on record to show
that defendants have replied the said notice or repaid amount to the
plaintiff. The plaintiff has contended that he is entitled for an amount
of Rs. 2,50,000/- towards principal and further entitled for an amount
of Rs. 65,096/- towards interest at the rate of 12% p.a. in view of
Section 80 of Negotiable Instruments Act 1881. Defendants though
appeared failed to file reply to summons for judgment. They have not
the plaintiff has remained unchallenged. Therefore, I am of the view
that plaintiff has proved that he is entitled for an amount of
Rs. 3,15,096/- including interest.
08] So far as further rate of interest is concerned, plaintiff has
claimed interest at the rate of 12% p.a. from the date of filing of the
suit till its realization. However, it appears that the rate of interest
claimed by the plaintiff is excessive in nature as compared to the rate
of interest of Nationalized Bank. Therefore, as per Section 34 of the
Civil Procedure Code, I am of the view that it would be just and proper
to grant interest at the rate of 7% p.a. on amount of Rs. 2,50,000/-
from the date of filing of the suit till its realization. Defendant No. 1 is
the Partnership Firm and defendant No.7 is its partner who has
executed bill of exchange. Defendant No. 2 is the Partnership firm and
defendants No. 3 to 6 are its partners. Defendant No. 2 has signed bill
of exchange as acceptor. Therefore, all defendants are jointly and
liable to pay outstanding amount along with interest to the plaintiff.
Hence, I answer Point No.1 in the affirmative. In the result, answer to
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point No. 2, I proceed to pass the following order.
O R D E R
1) The summons for judgment No.43 of 2018 is hereby
allowed.
2) Summary Suit No. 22 of 2017 is hereby decreed with costs.
3) The defendants are jointly and severally liable to pay an amount
of Rs.3,15,096/- (Rupees Three Lakhs Fifteen Thousand Ninety
Six only) to the plaintiff.
4) The defendants are jointly and severally pay the plaintiff simple
interest on Rs.2,50,000/- at the rate of 7% p.a. from
09/12/2026, the date of filing of the suit, till its full
realization.
5) The plaintiff may be entitled to get refund the court fees paid, if
provided for in the Rules.
6) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 03/12/2025
Dictated on : 03/12/2025
Corrected & signed on : 05/12/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
09/12/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
03/12/2025
JUDGMENT/ORDER signed by P. O. on 05/12/2025
JUDGMENT/ORDER uploaded on 09/12/2025
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