Final Order 1

Order Details: Copy of Judgment
Pdf Text: ..1.. Summary Civil Suit
No.929/2021
MHCC010021452020 Presented on : 18/02/2020
Registered on : 07/11/2020
Decided on : 05/07/2023
Duration : 03Y 04M 17D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.26
SUMMARY CIVIL SUIT NO.929 OF 2021
CHANDRAKANT PREMJI NANDU H.U.F.
A Hindu Undivided Family, age 45 years,
Having address at 302, Prince Apartment, Gopal
Lane, Ghatkopar (West), Mumbai – 400 086.
]
]
]
] ..Plaintiff
V/s.
VELJI DHANJI FURIA
Age: not known, Occupation: Businessman,
Residing at 201, Yogi Smriti, C-Wing, Park
Road, Vile Parle (East), Mumbai – 400 057.
]
]
]
] ..Defendant
Appearance :-
Mr. Shubham Mishra i/b. M/s. Shah and Furia Associates, learned
advocate for plaintiff.
Ms. Hiteeksha Doshi h/f Vimla and Co., learned advocate for
defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 05/07/2023.
J U D G M E N T
1 This Summons for Judgment is filed by plaintiff and
requested to make it absolute. It is the case of plaintiff that the
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defendant was in need of financial assistance. He assured the
plaintiff that he will return the amount within short period
alongwith interest. Believing the words of defendant, the plaintiff
advanced a personal loan of Rs.5,00,000/- (Rupees Fife Lakhs only)
vide Cheque No. 776666 dated 03/04/2014. The cheque was
drawn on Corporation Bank, Ghatkopar (West) Branch. Advance
loan was given at the rate of 1.25% per month. The said amount
has been duly credited in the account of defendant. In pursuance of
advance amount the defendant has executed Promissory Note on
03/04/2014. Accordingly, he has acknowledged liability of loan
amount.
2 The plaintiff states that defendant was in need of
further loan/finance therefore, upon further request made by the
defendant, the plaintiff advanced further loan of Rs.10,00,000/-
(Rupees Ten Lakhs only) vide Cheque No.776678 dated
23/04/2015. The cheque was drawn on Corporation Bank,
Ghatkopar (West) Branch. Advance loan was given at the rate of
1.25% per month. The said amount has been duly credited in the
account of defendant. In pursuance of advance amount, the
defendant has executed Promissory note on 23/04/2015. Plaintiff
states that thus, he advance aggregate sum of Rs.15,00,000/-
(Rupees Fifteen Lakhs only) as personal loan.
3 The defendant towards the discharge of liability of
interest was making part payment of interest till 31/07/2016.
Thereafter, he has not made any payment. He has made last
payment on 20/06/2019, that is Rs.25,000/- (Rupees Twenty-Five
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Thousand only) towards outstanding interest. Now, as per the
statement of plaintiff, an amount of Rs.22,73,225/- (Rupees
Twenty-Two Lakhs Seventy-Three Thousand Two Hundred and
Twenty-Five only) is due against defendant with future interest on
principal amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only).
Therefore, original suit has been filed for recovery of due amount.
4 In response to the summons for appearance, the
defendant appeared and tendered his appearance. The plaintiff
took out the summons for judgment bearing No.102 of 2021 and
served upon the defendant, who filed reply resisting the contents of
the plaint and summons for judgment. It is the submission of
defendant that from the contents of plaint it appears that it is
commercial transaction. Therefore, this Court has no jurisdiction
to entertain the present suit. The plaintiff has suppressed the
material facts from the Court and came before the court with
unclean hands. The transaction shown by plaintiff comes under the
Maharashtra Moneylending Act, 2014. Plaintiff is not having license
to advance loan with interest. Therefore, suit deserves to be
dismissed on preliminary issue/Preliminary objection. The
defendant denied execution of bill of exchange, promissory note.
The defendant further denied the loan payment dated
20/06/2019 and submitted that the suit is not within limitation.
In para 11 of the reply, he submitted that whatever amount paid by
him is towards business dealings between him & plaintiff and not
towards loan as alleged by plaintiff. The defendant has denied all
the statements made by plaintiff in plaint. Regarding question of
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money lending and commercial transaction, he submitted that
this Court has no jurisdiction to decide the suit and prayed for
dismissal of summons for judgment.
5 Having regard to the rival contentions and facts on
record, my learned Predecessor was pleased to grant the defendant,
leave to defend subject to deposit of Rs.15,00,000/- (Rupees
Fifteen Lakhs only) within 30 days from the date of order.
However, the defendant did not comply with the order of this court
and failed to deposit the amount of Rs.15,00,000/- (Rupees Fifteen
Lakhs only), as per the order in summons for judgment. Therefore,
matter proceeded ex-parte against him.
6 At the stage of ex-parte evidence, the plaintiff tendered
his affidavit of evidence (Exh-8) and relied on the documents at
Exh-10 to Exh-25. On the perusal of documents, it reveals that the
plaintiff has advanced Rs.15,00,000/- (Rupees Fifteen Lakhs only)
as a personal loan and the defendant has repaid the same from
time to time. The loan repayment is made by NEFT transaction on
20/06/2019 of Rs.25,000/- (Rupees Twenty-Five Thousand only).
7 The plaintiff has tendered the original passbook in this
regard at Exh-13, wherein the entry on the date 20/06/2019,
reflects the payment of Rs.25,000/- (Rupees Twenty-Five Thousand
only) by the defendant through NEFT facility. The question arises
that if there is no loan transaction then why the defendant has
repaid such amount. Therefore, the contention of plaintiff appears
to be probable.
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8 It was the objection of defendant that at the time of
summons for judgment the plaintiff was a money lender. However,
there is no proof on record to prove that the plaintiff is a money
lender and in the absence of such proof, it cannot be said that the
plaintiff is money lender. As per the document, it reveals that the
amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) are due and
recoverable from the defendant. As per the advocate notice issued
by plaintiff as on 22/10/2019, definitely, the plaintiff is entitled to
recover the balance amount. So far as interest is concerned,
plaintiff is seeking interest at the rate of 15% per annum, i.e. (1.25
% per month). However, it appears that it being a personal loan,
the rate of interest should not be more than 9% per annum. I am of
the view that the plaintiff is entitled to recover the balance amount
of Rs.15,00,000/- (Rupees Fifteen Lakhs only) with interest at the
rate of 9% per annum from the date of demand notice i.e.
22/10/2019.
9 As the defendant has made plaintiff constrained to file
the suit, he is also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Civil Suit No.929/2021, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.15,00,000/- (Rupees Fifteen Lakhs only)
alongwith interest at the rate of 9% per annum,
from the date of demand notice i.e. 22/10/2019,
till its full realisation from the defendant.
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3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 05/07/2023 C.R. No.15
Dictated on : 05/07/2023
Transcribed on : 06/07/2023
Signed on : 07/07/2023
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“Certified to be true and correct copy of the original signed order”.
10/07/2023
at about 10.54 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 05/07/2023
Order signed by Hon'ble Judge on : 07/07/2023
Order uploaded on : 10/07/2023
at about 10.54 a.m.
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