Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Received on : 17.02.2020
Registered on :07.03.2020
Decided on : 07.09.2021
Duration : 01Y 06M 21D
EXHIBIT11
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 263 OF 2020
( CNR No.MHCC010021042020)
MR. RITESH NARSINGH KHARATMOL ]
of Mumbai an adult Indian Inhabitant ]
aged about 32 years, Occupation:Business ]
(Money Lender) Having his office and ]
residence address at L.G./96/05/10, Indra ]
Nagar, Sundar Baug, Behind Hanuman ]
Mandir, Kamani Kurla, Mumbai – 400 070. ]
(Mobile No.9768824088/9221805028 ].. Plaintiff.
V/s.
MR. PARSHURAM RAMCHANDRA ]
USHIRE of Mumbai an adult ]
Indian Inhabitant, Aged about 52 years ]
Occupation: Service, Having his residence ]
address at Room No.5, Krishna Colony, ]
FCabin Road, Near to old Vitthal Mandir, ]
Kateninavali Kalyan East421306, ]
Office address at the Chief Accounts ]
Treasury, Bombay Municipal Corporation, ]
Employee Code No.3564891, ]
Designation: o.ys.i.o.ys.l. Nivruti Vetan, ]
Vibhag (EPNIII) Room No.63rd, 3 rd floor, ]
10Shaikh Hafizudin Marg, Behind Fire ]
Brigade, Byculla, Mumbai 400 008. ]..Defendant.
Advocate Mr. Balbheem Patil for the plaintiff.
Defendant Exparte.
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CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 7th SEPTEMBER, 2021
JUDGMENT
The suit is instituted for recovery of amount of
Rs. 5,00,000/ advanced by the plaintiff to defendant as a friendly loan.
2. It is the case of plaintiff that he is authorised moneylender.
He is acquainted with the defendant for 3 years prior to the institution
of the present suit. Hence, the defendant approached plaintiff for a
friendly help. Accordingly, plaintiff advanced the amount of Rs.
5,00,000/ to the defendant on 19/12/2018 without any interest.
Defendant executed a demand promissory note in favour of plaintiff on
12/12/2018 as a security of that amount in favour of plaintiff.
Defendant agreed to repay the amount. Plaintiff demanded the amount
to the defendant but defendant failed to repay the same. As the
demand promissory notes was dishonoured by the defendant, plaintiff
through his advocate issued a letter to defendant demanding the
amount on 13/01/2020. Defendant did not pay the amount to plaintiff.
Hence plaintiff was constrained to institute the present suit.
3. It is the case of plaintiff that is on the date of institution of
the suit amount of Rs. 5,00,000/ was due to him from the defendant
on the date of institution of the suit.
4. The summons of the suit was duly served upon the
defendant in person on 03/02/2021. However, defendant failed to
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appear before the court. Hence suit proceeded ex parte against the
defendant. Service affidavit is filed at Exhibit 5.
5. Considering the plaint, documents on record and claim
affidavit filed by plaintiff, following points arise for my determination
and my findings to them are as stated below for the following reasons.
Sr.
No
POINTS FINDINGS
1 Whether the plaintiff proves that he advanced
friendly loan of Rs. 5 lakh to the defendant
and as a security of that amount, defendant
executed a demand promissory note in favour
of plaintiff for the amount of Rs. 5 lakh?
In the
Affirmative
2 Whether the plaintiff is entitled to the
amount of Rs.5,00,000/ from the defendant?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 AND 2:
6. The plaintiff has filed a claim affidavit at Exhibit6. The
plaintiff has filed demand promissory note executed by the defendant in
his favour on 15/12/2019 at Exhibit9. It is duly stamped and signed
by the defendant. It shows that amount of Rs. 5,00,000/ was advanced
by plaintiff to defendant and defendant agreed to pay interest at the
rate of 18% per annum on the said amount. The plaintiff has filed on
record a letter issued by his advocate to the defendant demanding the
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amount. The copy of a notice is at Exhibit10 . All the above documents
produced on record by the plaintiff are supported by his claim affidavit.
It is interesting to note that, though, there is mention of interest at the
rate of 18% per annum on the amount of Rs.5,00,000/ in the demand
promissory note executed by defendant in favour of plaintiff, the
plaintiff actually did not demand any amount of interest in the plaint.
On the other hand it is stated that the amount was advanced by plaintiff
to defendant as a friendly loan without any interest. If for any reason
plaintiff is willing to waive the interest on that amount, it cannot
invalidate the claim of plaintiff. Plaintiff cannot demand the said
amount of interest in any subsequent proceedings.
7. The defendant, though duly served with the summons of
the suit, failed to appear before the court and contest the claim of
plaintiff. Therefore, the oral and documentary evidence produced by
plaintiff on record has gone unchallenged and the court has to rely
upon the same as there is no otherwise illegality in the claim of the
plaintiff.
8. In view of all above discussion, I have come to the
conclusion that the plaintiff has proved that he advanced of the amount
of Rs. 5,00,000/ to defendant as a friendly loan and defendant
executed a demand promissory note of the same amount in favour of
plaintiff as a security. The plaintiff has further proved that the
defendant failed to pay the amount of Rs. 5,00,000/ along with interest
thereon on demand by the plaintiff. Therefore, claim of plaintiff is
bound to be allowed. In view of all about discussion I answer points
Nos. 1 and 2 in the affirmative and proceed to pass following order.
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O R D E R
1. The suit is decreed with costs.
2. The Defendant is directed to pay the amount of
Rs.5,00,000/ (Rupees Five Lakhs only) to the plaintiff
within 60 days of the date of this order.
3. Decree be drawn up accordingly.
4. Court fees be refunded as per the rules and
entitlement.
5. The suit stands disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 07.09.2021 Gr.Mumbai.
Dictated on: 07.09.2021
Typed on : 07.09.2021
Signed on : 07.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09.09.2021 AT 02.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
07/09/2021
Judgment/Order signed by P.O. on 07/09/2021
Judgment/Order uploaded on 09/09/2021
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