Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010021652018 Presented on 12/02/2018
Registered on 17/02/2018
Decided on 24/11/2025
Duration 07Y: 09M: 12D
Exhibit 26
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO.227 OF 2018
M/s. J.K. Dall Mill ]
A proprietorship concern, through ]
its proprietor Mr. Kishore Morarji ]
Chheda an adult Indian Inhabitant ]
aged about 64 years, having shop No. 1, ]
Veer Apartment, CHS, Opposite Somaiya ]
College, Rajawadi, 7th Road, ]
Ghatkoper(East), Mumbai-400 077. ]... Plaintiff
V/s. ]
Mr. Harshvardhan Parikh ]
An adult Indian Inhabitant aged ]
about 43 years, residing at B-3, ]
Mahavir Smruti, Plot No, 122/123, ]
Garodia Nagar, Ghatkopar (E), ]
Mumbai- 400 077. ]... Defendant
Appearance:-
Ld. Advocate Sanjay Chaturvedi for the plaintiff.
Ld. Advocate Asha Shah for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 24/11/2025
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2 SUM SU NO.227/2018
JUDGMENT
( Dictated and pronounced in open Court)
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil Procedure, 1908 (C.P.C.), by the plaintiff for recovery of amount of
Rs. 95,41,703/- along with further interest from defendant.
Brief facts of plaintiff’s case may be summarized as under:
02] As per the plaintiff, it is a sole proprietor and carrying on
business of selling grains, pulses and dry fruits etc. Defendant is an
individual and carries his business in dry fruits and grains. As per
purchase order placed by the defendant, plaintiff used to supply goods
to the defendant. Accordingly, plaintiff has supplied goods to the
defendant between 16/03/2012 to 06/06/2012, total amounting to
Rs.64,19,275/-. The plaintiff has raised 40 invoices against said delivery
of goods on the defendant. Further, the defendant had issued 34
cheques towards security against delivery of said goods. The plaintiff
requested defendant to pay the outstanding amount however, defendant
was avoiding to pay the said amount. Therefore, plaintiff lodged
complaint on 10/10/2014 at Tilak Nagar Police Station, Ghatkopar
against the defendant. Thereafter, defendant agreed that he will pay
amount within two months however, even after lapse of six months,
defendant failed to pay the outstanding amount. Therefore, again on
07/02/2015 plaintiff lodged complaint against defendant. Thereafter,
defendant requested to plaintiff to withdraw the complaint and issued
three cheques of Rs. 20,00,000/-, Rs. 20,00,000/- and Rs. 24,20,000/-.
Further, on depositing said cheques in the bank it were returned with
remark, "insufficient funds". Therefore, plaintiff issued demand notice
dated 09/06/2015 to the defendant u/s. 138 of Negotiable Instruments
Act and called upon to pay outstanding amount. The defendant given
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3 SUM SU NO.227/2018
false reply to the said notice on 04/07/2015 and contended that he has
paid an amount of Rs.32,00,000/- on 09/03/2015 and Rs. 32,20,000/-
on 13/03/2015 in cash. As defendant failed to make the payment,
plaintiff has lodged criminal complaint bearing No. 918/SS/215, u/s.
138 of N.I. Act against defendant. Thus, the defendant is liable to pay
an amount of Rs. 64,20,000/- towards principal and 18% p.a. interest
thereon, total amounting to Rs. 95,41,703/- alongwith further interest.
Hence, this suit.
03] Defendant appeared in the matter. Thereafter, plaintiff has
taken out Summons for Judgment No.137/2018, which came to be
dismissed on 29/06/2024 and defendant was granted conditional leave
to defend the suit with direction to depositing 50% of principal amount
within 60 days. Defendant has failed to comply the said order. The
plaintiff has filed Non Deposit Certificate vide Exh. 10. Defendant had
challenged said order before Hon'ble High Court vide Writ Petition
No.12012/2024, wherein time was extended to deposit amount as per
order dated 06/01/2025. However, defendant failed to deposit amount
and plaintiff has filed non-deposit certificate vide Exh.10 on record.
Therefore, plaintiff is entitled for judgment as per Order 37, Rule 3(6)
(b) of C.P.C.
04] The plaintiff has relied on following documents vide List
Exh. 8.
Sr.
No. Exhibit Particulars
1 Exh.8/1
to Exh.8/3
Security Cheque No.100423, Security Cheque
No.100425, Security Cheque No.100426,
2 Exh.8/4 to
Exh. 8/43
Invoice No.41932 of Rs.1,28,638/- dated
16/03/2012, Invoice No.41999 of Rs.2,67,310/-
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4 SUM SU NO.227/2018
dated 21/03/2012 ,Invoice No.42000 of Rs.2,82,550
dated 23/03/2012, Invoice No.42020 of
Rs.1,21,000/- dated 25/03/2012, Invoice No.42042
of Rs.1,81,525/- dated 26/03/2012, Invoice
No.42049 of Rs.213,918/- dated 27/03/2012,
Invoice No.42053 of Rs.3,412/- dated 29/03/2012,
Invoice No.42073 of Rs.2,13,000/-dated
30/03/2012, Invoice No.42078 of Rs.1,24,700/-
dated 31/03/2012, Invoice No.42121 of
Rs.1,33,148/- dated 31/03/2012, Invoice No.42122
of Rs.2,40,000/-dated 03/04/2012, Invoice
No.42125 of Rs.3,400/-dated 03/04/2012, Invoice
No.42134 of Rs.2,54,400/- dated 04/04/2012,
Invoice No.42139 of Rs.1,94,750/- dated
04/04/2012, Invoice No.42152 of Rs.32,914/- dated
05/04/2012, Invoice No.42198 of Rs.1,84,300/-
dated 10/04/2012, Invoice No.42199 of
Rs.1,58,150/- dated 10/04/2012, Invoice No.42313
of Rs.2,07,000/- dated 11/04/2012, Invoice
No.42314 of Rs.1,57,500/- dated 11/04/2012,
Invoice No.42216 of Rs.1,98,440/- dated
12/04/2012 ,Invoice No.42222 of Rs.39,900/- dated
14/04/2012, Invoice No.42246 of Rs.3,60,400/-
dated 18/04/2012, Invoice No.42247 of Rs.53,250/-
dated 17/04/2012, Invoice No.42266 of
Rs.1,71,067/- dated 19/04/2012, Invoice No.42269
of Rs.64,200/- dated 20/04/2012 ,Invoice No.42277
of Rs.99,080/- dated 20/04/2012, Invoice No.42360
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of Rs.2,59,400/- dated 25/04/2012, Invoice
No.42361 of Rs.1,88,993/- dated 26/04/2012,
Invoice No.42381 of Rs.101,120/- dated
28/04/2012, Invoice No.43033 of Rs.2,12,000/-
dated 30/04/2012, Invoice No.43034 of
Rs.1,07,100/- dated 03/05/2012, Invoice No.43056
of Rs.2,12,000/- dated 04/05/2012, Invoice
No.43077 of Rs.60,000/- dated 08/05/2012, Invoice
No.43103 of Rs.2,34,400/- dated 10/05/2012,
Invoice No.43108 of Rs.1,52,900/- dated
11/05/2012, Invoice No.43142 of Rs.75,200/- dated
15/05/2012, Invoice No.43158 of Rs.1,35,200/-
dated 17/05/2012, Invoice No.43184 of Rs.89,150/-
dated 19/05/2012, Invoice No.43385 of
Rs.3,30,000/- dated 21/05/2012, Invoice No.43401
of Rs.1,74,000/- dated 06/06/2012.
3 Exh.8/44 Complaint addressed to Tilak Nagar Police Station
dated 11/10/2014.
4 Exh.8/45 Complaint addressed to Tilak Nagar Police Station
dated 17/02/2015.
5 Exh.8/46 Cheque No.100488 for Rs. 20,00,000/- drawn on
Jankalyan Sahakari Bank Ltd. Ghatkopar (E) branch
dated 20/03/2015
6 Exh.8/47 Cheque No.100487 for Rs. 20,00,000/- drawn on
Jankalyan Sahakari Bank Ltd. Ghatkopar (E)
branchdated 31/03/2015
7 Exh.8/48 Cheque No.100510 for Rs. 24,20,000/- drawn on
Jankalyan Sahakari Bank Ltd. Ghatkopar (E) branch
dated 08/04/2015
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6 SUM SU NO.227/2018
8 Exh.8/49 to
Exh.8/52
Four Cheques Return Memo IDBI Bank for cheque
No. dated 28/05/2015.
9 Exh.8/53 Notice issued to defendant dated 09/06/2015
10 Exh.8/54 Postal Acknowledgment Card
11 Exh.8/55 Defendant’s Reply to Notice dated 04/07/2015
12 Exh.8/56 Criminal Complaint u/s. 128 of N. I. bearing
No.918/SS/2015 dated 30/07/2015.
05] Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
which my findings are recorded for reasons given below.
Sr.
No.
Points Findings
1. Whether the plaintiff is
entitled to recover an
amount of Rs.95,41,703/-
from the defendant? If yes,
at what rate of interest ?
Yes, the plaintiff is entitled for simple
interest on Rs. 64,20,000/- at the rate of
7% p.a. from 12/02/2018 i.e. the date
of filing the suit till its full realization
from the defendant.
2. What order and decree? As per final order.
R E A S O N S
As to Points No. 1 and 2 :-
06] Perused plaint, oral and documentary evidence on record.
Heard Ld advocate for the plaintiff. As per plaintiff, defendant is
engaged in business of buying and supplying grains, pulses and dry
fruits at address mentioned in the title cause. Defendant approached in
the year 2009 to the plaintiff for the first time for supplying said goods
and then became regular customer. Defendant used to deal in cash. In
the month of March, 2012 defendant started asking delivery of goods
on credit basis and to give assurance of payment, he issued three
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cheques bearing No.100423, 100425 and 100426 respectively as a
security. Plaintiff has filed said cheques on record vide List Exh. 8/1 to
8/3 to support its contention. Further, plaintiff used to supply goods to
the defendant on credit basis and defendant used to issue post dated
cheque to the plaintiff. Further, plaintiff sold, supplied and delivered
goods to the defendant between 16/03/2012 to 06/06/2012 and raised
40 Invoices for total amount of Rs. 64,19,275/-. Defendant to pay said
amount issued 34 cheques. The plaintiff has filed photocopies of
Invoices on record vide List Exh. 8/4 to 8/43, therefore, it cannot be
considered in evidence. The plaintiff has not filed copies of said 34
cheques on record to support its contention.
07] It is the contention of the plaintiff that he did not deposit
the said cheques as defendant had assured that he will pay amount in
cash. Further, defendant failed to pay outstanding amount for a period
of one year therefore, plaintiff had lodged complaint on 10/10/2014
with Tilak Nagar, Police Station, Ghatkopar, Mumbai against defendant.
Defendant was called upon in pursuant to the said complaint and he
assured that he will pay outstanding amount within two months.
Plaintiff has filed office copy of said complaint on record vide List
Exh. 8/44 to support its contention. However, defendant failed and
neglected to make the payment therefore, plaintiff filed complaint
against defendant on 07/02/2015 at Tilak Nagar Police Station,
Ghatkopar. Plaintiff has filed office copy of said complaint vide List
Exh. 8/45 to support its contention. Further, it is the contention of the
plaintiff that to discharge his liability thereafter, defendant issued three
cheques of Rs. 20,00,000/-, 20,00,000/- and 24,20,000/- respectively in
favour of plaintiff bearing No. 100488 dated 20/03/2015, No. 100487
dated 31/03/2015 and No.100510 dated 08/04/2015. The said
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cheques when deposited for encashment, same were dishonured for
reason, “funds insufficient”. The plaintiff to support its contention has
filed said original cheques and cheques return memo on record vide List
Exh. 8/46 to 8/52. As cheques issued by the defendant were
dishonoured, plaintiff issued notice on 09/06/2015 u/s.138 of
Negotiable Instruments Act and called upon defendant to make
payment of Rs. 64,20,000/- along with interest at the rate of 18% p.a.
thereon. The said notice was sent by RPAD and it is received by the
defendant. Plaintiff has filed office copy of said notice and original
postal receipt and AD card on record vide List Exh. 8/53 and 8/54.
Defendant replied the said notice on 04/07/2015 with false contention
that he has paid an amount of Rs. 32,00,000/- on 09/03/2015 and
Rs. 32,20,000/- on 13/03/2015 in cash. Plaintiff has filed photocopy of
said notice on record vide List Exh. 8/55. It is pertinent to note that it
being photocopy, it cannot be considered in the evidence. Further,
defendant has failed to bring any material evidence on record to show
that he had paid an amount of Rs. 64,00,000/- in cash to the plaintiff. If
defendant had paid said amount to the plaintiff then he would not have
issued cheques thereafter to the plaintiff. Further, plaintiff filed criminal
complaint bearing No.918/SS/2015 against defendant for dishonor of
said cheques. Plaintiff has filed photocopy of said complaint on record
vide List Exh. 8/56. Thus, it appears that plaintiff has proved by oral
and documentary evidence that they had supplied goods of
Rs. 64,19,275/- to the defendant during March 2012 to June 2012.
Further, to pay the said amount defendant had issued three cheques
and which were dishonored for reasons, “funds insufficient”. It is
pertinent to note that defendant has not contested the matter therefore,
evidence of plaintiff has remained unchallenged. Even otherwise,
defendant has not complied order dated 29/06/2014 passed in
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Summons for Judgment No. 137/2018. Therefore, I am of the view that
plaintiff has proved and he is entitled for an amount of Rs. 95,41,703/-
including interest at the rate of 18% p.a.
08] So far as, further interest is concerned plaintiff has claimed
interest at the rate of 18% p.a. on Rs. 64,20,000/-. However, I am of
the view that the same is excessive as compared to the rate of interest of
the Nationalized Banks. Therefore, having regard to the provision of
section 34 of the C.P.C., I am of the view that granting the interest at
the rate of 7% p.a. on the principal amount would be just, proper and
reasonable. Hence, I hold that the plaintiff is entitled to interest at the
rate of 7% p.a. on the principal amount, from the date of filing the suit
till its full realization. It is submitted by the plaintiff that order for
attachment of property of defendant be passed. The plaintiff has to
bring sufficient material on record that defendant is disposing his
property in order to frustrate decree. However, plaintiff has not made
out any such case and to pass order of attachment before judgment.
Therefore, plaintiff is not entitled for such relief at this stage. Hence, I
answer point No.1 in affirmative and in answer to point No. 2, I
proceed to pass following order :-
O R D E R
1) Summary Suit No.227 of 2018 is hereby decreed with costs.
2) The defendant shall pay an amount of Rs.95,41,703/- (Rupees
Ninety Five Lakhs Forty One Thousand Seven Hundred and Three
only) to the plaintiff.
3) The defendant shall pay the plaintiff simple interest on
Rs.64,20,000/- at the rate of 7% p.a. from 12/02/2018, the date
of filing of the suit, till its full realization.
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10 SUM SU NO.227/2018
4) The plaintiff may be entitled to get refund the court fees paid, if
provided for in the Rules.
5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 24/11/2025 Court Room No.81
Dictated on:24/11/2025
Corrected and signed on:25/11/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
26/11/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
24/11/2025
JUDGMENT/ORDER signed by P. O. on 25/11/2025
JUDGMENT/ORDER uploaded on 26/11/2025
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