Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.9092021
MHCC010020942019 Presented on : 22/02/2019
Registered on : 14/02/2020
Decided on : 04/08/2022
Duration : 02Y/05M/21D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No. 909 OF 2021
Navnit Biharilal Parmar
Age: 57 years, Occupation: Service,
Residing at: 3/30, Municipal Chawl, Malji
Rathod Road, Walpakhadi, Mumbai
400009.
...PLAINTIFF
VERSUS
Ramesh Naran Parghi
Age: Not Known, Occupation: Service,
Residing at: Room No.65, CBlock, 5th
Floor, B.M.C. Chawl, Malji Rathod Road,
Walpakhadi, Mumbai400009.
...DEFENDANT
Smt. Smita Jagtap, learned advocate for plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 04/08/2022)
This is a suit for recovery of sum of Rs.3,00,000/
alongiwth interest @ 24% p.a. from the date of suit till realisation of the
entire amount.
2. It is case of plaintiff that defendant is his distant relative.
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2 Comm. Suit No.9092021
Defendant along with his wife (Mrs.Suman Ramesh Parghi) had
approached the plaintiff on 30/12/2015 requesting to give friendly loan
of Rs.3,00,000/ for a period of two months and assured that after 2
months i.e. on 20/12/2016 he will return the amount. Plaintiff in good
faith and having trust on defendant gave friendly loan of Rs.3,00,000/
on 30/12/2015. Defendant to show his bonafied had handed over to
the plaintiff a promissory note prepared by him with his own
handwriting and signature.
3. After two months when plaintiff approached the defendant
to collect his money, the defendant has issued plain cheque of
Rs.3,00,000/ and requested to deposit the cheque in bank after a
period of 40 days. On 7/4/2016 plaintiff deposited the cheque in his
bank but it dishonored due to ‘insufficient funds’. Therefore, on
18/04/2016 plaintiff has issued him notice under Section 138 of the
Negotiable Instruments Act. After receipt of notice defendant and his
wife requested for extension of time upto 20/06/2016 to pay the
amount. On 09.05.2016 defendant has executed affidavitcum
declaration and declared all above facts and assured to pay the share
amount.
4. Defendant again failed to pay the amount upto extended
period till 20.06.2016. Therefore, plaintiff approached the defendant
and on 03.08.2016 defendant shown his bonafide and handed over
promissory note in favour of plaintiff to pay the said amount by
03.09.2016.
5. Defendant and his wife gave false promises to plaintiff but
did not pay the said amount. On 24/10/2016 plaintiff through his
counsel had issued legal demand notice u/s 138 of the Negotiable
Instrument Act. Defendant has not sent any reply to legal demand
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3 Comm. Suit No.9092021
notice nor cleared the outstanding amount till date. Hence, plaintiff has
filed this suit.
6. Defendant served with suit summons but did not appear.
Hence, suit proceeded exparte against him as per order
dtd.04/03/2022.
7. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether plaintiff proved that he has
advanced amount of Rs.3,00,000/ to
defendant on 30.12.2015 ?
…Yes
2. Whether plaintiff proved that amount of
Rs.3,00,000/is due and payable by
defendant?
…Yes
3. Whether plaintiff is entitled for the relief
claimed?
If yes, at what rate of interest ?
…Yes, @18% p.a.
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 to 3:
8. Heard learned counsel of Plaintiff. Plaintiff has examined
himself at Exh.7 to prove his case. He reproduced all content of plaint in
his chiefexamination. His evidence is supported by documentary
evidence Exh.9 to 17 : i) promissory note dtd.30.12.2015, ii) cheque
dtd.25.03.2016, iii) bank memo and slip regarding dishoboured of
cheque, iv) demand notice dtd.18/04/2016, v) affidavitcum
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4 Comm. Suit No.9092021
declaration dtd.09/05/2016, vi) promissory note dtd.03/08/2016,
vii)demand notice dtd.23/10/2016 and postal packing report.
9. Defendants did not appear and challenged evidence of
plaintiff/PW1 which is supported by aforementioned documentary
evidence. There is no reason to disbelieve his testimony. Hence, plaintiff
succeed to establish that amount of Rs.3,00,000/ is due and payable by
the defendant to plaintiff. As far as claim of interest is concerned,the
defendant has deprived plaintiff from using his own money hence,
plaintiff is entitled for interest @ of Rs.12% p.a. being non commercial
transaction. Thus, I answered point Nos.1 to as above.
ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to plaintiff the amount
of Rs.3,00,000/ with interest @ 12% p.a. from the date
of suit till realization of the said amount.
3. Decree be drawn up accordingly.
Date : 04/08/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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5 Comm. Suit No.9092021
Dictated on : 04/08/2022.
Checked on : 04/08/2022.
Signed on : 04/08/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05/08/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 04/08/2022.
Order signed by P.O. on 04/08/2022.
Order uploaded on 05/08/2022.
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