Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum. Suit No. 471 of 2019
Filed on : 22.04.2019
Registered on : 22.04.2019
Decided on : 20.01.2020
Duration : Year 00 Month-08 Days-29
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.471 OF 2019
(CNR NO. MH CC01-002099-2019)
Exhibit-12
Gopaldas Sitaram Ahuja.
Age.: 67 years, Occ.: -
Address.: 406, Shreenivas, 382/384,
Narsi Natha Street, Katha Bazar,
Masjid Bunder, (West),
Mumbai – 400 009.
….Plaintiff
V/s.
1. Kings Finance & Credit Corporation,
Through its Proprietor,
Ashok V. Jashnani (H.U.F.)
Address : at Shop No. 5, Nimkar Bldg,
V.B. Phadke Road, Panvel – 410 -206.
Or
C/o. Kings Electronics Pvt. Ltd.
Eden Gardens, 3rd Floor,
Near Panvel Railway Station,
Taluka Panvel, Panvel- 410206.
2. Ashok V. Jashnani.
Proprietor,
Age.: Not known, Occ. :- -
Kings Finance & Credit Corporation,
Address: Shop No.5, Nimkar Bldg,
V.B. Phadke Road,
Panvel – 410-206.
Or
C/o. Kings Electronics Pvt. Ltd.
Eden Gardens, 3rd Floor,
near Panvel Railway Station,
Taluka Panvel, Panvel – 410 -206.
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2 Sum. Suit No. 471 of 2019
3. Prakash V. Jashnani.
Age.: Not Known, Occ.: Service,
Address.: Shop No. 5, Nimkar Bldg,
V.B. Phadke Road, Panvel- 410 -206.
Or
C/o. Kings Electronics Pvt. Ltd.
Eden Gardens, 3rd Floor,
Near Panvel Railway Station.
... Defendants
SUIT FOR RECOVERY OF RS.2,00,000/-
Appearance:-
Rahiya Memon i/b Bhuta & Associates, Advocate for the Plaintiff.
Exparte against Defendant.
CORAM :- HER HONOUR JUDGE
SABIHA. G. SHAIKH
Ad-hoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59)
DATE :- 20th January, 2020
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
The facts of the case are as under :
2. The Plaintiff is an Individual, having office at 406, Shreenivas,
382/384 Narsi Natha Street, Katha Bazar, Masjid Bunder (W), Mumbai
– 400 009. Defendant No.1 is a proprietary Firm carrying on the
Electronics business in the names of Kings Finance & Credit Corporation
at Panvel, Defendant no.2 is the Proprietor of Defendant no.1 and
Defendant no.3 is the Acceptor of the amount of Demand/Bills of
Exchange on behalf of the Defendants. It is the case of plaintiff that
the plaintiff has granted financial assistance to the defendant for an
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3 Sum. Suit No. 471 of 2019
amount of Rs.2,00,000/-. The defendant executed in favour of the
plaintiff a Bill of Exchange of Rs.2,00,000/- dated 07nd July, 2016
against the sum of Rs.2,00,000/- received by the defendant from the
plaintiff on the the above said date by the said Bill of Exchange. The
defendant had promised to pay to the plaintiff the said sum of
Rs.2,00,000/- with interest thereon, at the rate of 18% per annum on
demand. It is case of the plaintiff that the plaintiff has deposited the
cheque of Rs. 2,00,000/- bearing no. 259562 dated 28.02.2018 but
same was dishonoured with remark '' Drawers Signature Differs''. But,
the defendant failed to pay to the plaintiff in-spite of demands and
reminders and receipt of the legal notice dated 12th January, 2019.
Hence, plaintiff is constrained to file the suit for recovery of the said
amount. The total suit claim of the plaintiff for Rs.2,00,000/-.
3. The suit summons were duly served on the defendant but he
failed to appear. Hence, suit is posted for judgment as per order XXXVII
Rule 2(3) of Code of Civil Procedure 1908 judgment.
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. What is due and payable from
the defendants to the plaintiff ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.2,00,000/- with
interest
@ 10 % per annum.
2. What order and decree? As per final order.
REASONS
5. In order to prove the case of the plaintiff filed following
documentary evidence.
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Exhibit.
No.
Description of documents Date
Exhibit -7 This documents is original
Bill of Exchange.
dated 07.07.2016
Exhibit -8 This document is original
cheque bearing no. 259562.
dated 28.02.2018
Exhibit -9 This document is original
return memo.
dated 01.03.2018
Exhibit -10 This document is office copy
of advocate's Notice and the
copy of acknowledgment
cards along with postal
receipts
dated 08.01.2019
Exhibit -11 This document is Particulars
of claim
AS TO POINT NO.11
6. All the documents produced by the plaintiff at list Exh. 07 to 11
goes to establish that plaintiff has taken loan of Rs.2,00,000/- to the
defendant. The documents further prove that the amount of
Rs.2,00,000/- is due and payable to the plaintiff company from
defendants towards the loan. But, defendants have failed to pay
amount of Rs.2,00,000/- towards loan. The documents at list Exhibit -
07 and Exhibit-08 goes to establish that defendants are liable to pay
Rs.2,00,000/- to the plaintiff on the date of filing of the suit towards the
loan and therefore the defendant failed and neglected to make payment
of the plaintiff's outstanding dues. In this background, it is held that
plaintiff is entitle to recover sum of Rs.2,00,000/- from the defendant.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceed 18% per annum, if the transaction is commercial
and there is no contract pertaining to the same between the parties. In
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the present case the transaction is a commercial one and there is no
express contract existing between the parties as to the rate of interest
which shall be levied. Therefore, the transaction is being commercial
transaction be rate of interest at the rate of 10% per annum would be
just and proper to be awarded on the principal sum adjudged i.e.
amount of Rs.2,00,000/-. Hence, point no.1 is answered in the
affirmative.
As to point no.2:-
8. In view of discussion and finding on point no.1 it is held that
plaintiff is entitled to recover Rs.2,00,000/- from defendants with
interest at the rate of Rs.10% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from defendants. Hence, in answered to point no.2 I proceed to pass
the following order :
: ORDER:
1. Defendant No.1,2 and 3 jointly and severally shall pay
Rs.2,00,000/- (Rupees Two Lacs only)to the plaintiff with
interest at the rate of 10% per annum from the date of filing of
the suit till its realization.
2. Defendant No. 1, 2 and 3 do pay costs of the suit to the
plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per the rules.
(S. G. Shaikh)
Ad-hoc Judge
City Civil Court,
Gr. Bombay
Date :- 20/01/2020
Typed on : 20.01.2020
Signed on : 20.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.02.2021 11.35 p.m. Ms. Namrata Kokare (Clerk)
Name of the Judge H.H.J. Sabiha.G.Shaikh.
Ad-hoc Judge.
(Court Room No.59)
Date of pronouncement of Order 20.01.2020
Order signed by P.O. on 20.01.2020
Order uploaded on 17.02.2021
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