Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :17.02.2020
Registered On :07.03.2020
Decided on :5.01.2022
Duration : Y-01/M-10/D-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 261 OF 2020
Exhibit- 07
CNR NO.- MHCC01-002096-2020
Mahendra Premchandji Jain
Of Mumbai , an adult Indian Inhabitant,
Residing at 46, Modi Street, Ground Floor,
Fort, Mumbai- 400 001.
... Plaintiff
V/s.
Ajit Damodar Naik
Age Not known of Mumbai an adult Indian
Inhabitant,
Working for gain with Western Railway Store
Department, EMP no. 12165232,
4th Floor, Station Building, Head Quarters,
Churchgate, Mumbai- 400 020. And
Residing at , Gg-1, Dahyabhai Mesmi Chawl
Majas Janta Colony, Ambica Nagar,
Jogeshwari(East), Mumbai- 400 060.
... Defendants
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendants.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 5/01/2022
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 defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The defendant was under liability to pay towards the plaintiff
hence, towards the discharge of said legal liability he drew and
delivered to the plaintiff a cheque dtd. 24.10.2018 bearing no.553189
drawn on The Greater Bombay Co-operative Bank Ltd., Vile Parle (East),
Mumbai- 400 057, for valuable consideration of Rs.75,000/-. Said
cheque on being presented to the bank has been dishonored vide a
memo of dishonor dtd.15.11.2018 with a remark of “Funds
Insufficient”. By virtue of dishonor of said cheque and pursuant to the
provisions of Negotiable Instrument Act, the plaintiff has become
entitled to recover said amount of cheque alongwith interest at the rate
of 18% p.a. from the date of dishonor of cheque.
3. The plaintiff issued letter/notice through advocate on
19.11.2018 to the defendant calling upon him to pay the amount of Rs.
75,000/- alongwith accrued interest but the defendant failed to comply
with said requisition. The plaintiff averred that the defendant is liable
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to pay the outstanding amount of Rs.90,941.09ps/-with interest.
4. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendant is liable to pay a
sum of Rs.90,941.09ps/- to the plaintiff and further interest at the rate
of 18% p.a on the principal amount from the date of suit till its
realization. Hence, this suit.
5. The suit summons were duly served on the defendant but
he failed to appear and contest the suit. Hence, suit is posted for
judgment as per order XXXVII Rule 2(3) of Code of Civil Procedure
1908 judgment.
6. 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 entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.90,941.09ps/-
with interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.06 i.e the list of
documents:
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Sr.
No.
Description of documents Exhibits
1 Cheque dtd. 24.10.2018 being
Exhibit “A” to the plaint.
Exh. 6/1
2 Memo of Dishonour Dtd.
15.11.2018 being Exhibit “B” to
the Plaint
Exh. 6/2
3 Plaintiff’s Advocates’ letter dated
19.11.2018, being Exhibit “C” to
the plaint, alongwith the postal
records in connection therewith.
Exh. 6/3
AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendant. The documents produced on record by the plaintiff shows
that the defendant issued the cheque to the plaintiff for the amount of
Rs.75,000/- and said cheque came to be dishonored for insufficiency of
funds. Said amount is not paid by the defendant to the plaintiff.
Further, it reveals from the record that said transaction for issuance of
cheque took place on dtd.24.10.2018, the notice/letter of demand was
issued to the defendant on dtd.19.11.2018 and the suit is filed on
17.2.2018. As such, the plaintiff’s claim in the suit is well within
limitation.
9. All the documents produced by the plaintiff at list Exhibit-
06 goes to establish that the defendant has issued cheque for
Rs.75,000/- towards the legal liability but staid cheque got dishonored.
The legal liability is not discharged by the defendant. Therefore, the
plaintiff is claiming Rs.90,941.09ps/- which is the amount calculated
with interest at the rate of 18% p.m from the date of dishonor of cheque
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till the filing of suit. Said amount is not repaid by the defendant.
Therefore, the defendant is liable to pay the outstanding amount of
Rs.90,941.09ps/- to the plaintiff. In this background, I have arrived at
the conclusion that the plaintiff is entitled to recover sum of
Rs.90,941.09ps/--from the defendant.
10. According to the plaintiff the outstanding dues against the
defendant is Rs.90,941.09ps/- and said amount is calculated alongwith
with interest at the rate of 18% p.m from the of dishonor of cheque till
the filing of suit. Apart from said amount which is due against the
defendant on the date of filing of the suit, the plaintiff has claimed
interest at the rate of 18% per annum on the principal amount. The
defendant neither appeared nor contested the suit. There is nothing on
record to show that the said translations between the parties was not
the commercial transactions. Therefore, I hold the plaintiff is entitled to
recover the principal amount alongwith interest at the rate of 18% p.a.
till realization of the amount. Therefore, I hold, the rate of interest at
the rate of 18% per annum would be just and proper to be awarded on
the principal sum of Rs.75,000/-. Hence, point no.1 is answered in the
affirmative.
AS TO POINT NO.2:
11. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.90,941.09ps/- from the
defendant with interest at the rate of 18% per annum on the principal
sum of Rs.75,000/- from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from the defendant.
Hence, in answered to point no.2, I proceed to pass the following order.
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ORDER
1. The defendant shall pay Rs.90,941.09ps/-(Rs. Ninety
Thousand Nine Hundred Forty One and Nine paise
Only) to the plaintiff, with interest at the rate of 18%
per annum on the principal sum of Rs.75,000/- from
the date of filing of the suit till its realization.
2. The defendant 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 :5.1.2022 Gr. Bombay
Dictated on : 5.1.2022
Typed on : 10.1.2022
Signed on : 10.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.1.2022 1.00p .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
5.1.2022
JUDGMENT/ORDER signed by
P.O.on
10.1.2022
JUDGMENT/ORDER uploaded on 10.1.2022
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