Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S. C. Suit No. 918/21. 1 Ex-parte Judgment (Exh.9).
MHCC010023162020
Presented on : 21-02-2020
Registered on : 01-04-2021
Decided on : 24-04-2024
Duration : 4 years, 2 months, 3 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SHORT CAUSE SUIT NO. 918 OF 2021
EXHIBIT NO.9.
Smt. Sushma Devi Daga, )
Proprietor of Kirtinath Enterprises, )
Through POA Holder, )
Shri. Jai Kishan Narayandas Daga )
Age 37 Yrs, Occupation:- Business )
An Adult Indian Inhabitant Having )
Address of Office at :- )
Hanuman Building, )
Shop No.3, Ground Floor, Tambakanta, )
Pythonie, Mumbai – 400003, )
Mobile No. 9320547909 )
Email ID. sushilyarn@gmail.com )...Plaintiff
Versus
Smt. Subrurayan Amirdham, )
Prop. Of NSR Mills (Proprietary Firm) )
An Adult, Indian Inhabitant )
Having address at )
347-B, Bharathiar Road, )
New Sidha Pidur, )
Coimbatore – 641044 )...Defendant
Shri Dheeraj K. S. Rathore, Advocate for the plaintiff.
None for the defendant. (Ex-parte).
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S. C. Suit No. 918/21. 2 Ex-parte Judgment (Exh.9).
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 24th APRIL, 2024.
JUDGMENT
(Delivered on 24th April, 2024.)
1. This is suit for recovery of an amount of Rs.6,25,800/- with
interest at the rate of 12% p.a.
2. It is case of the plaintiff that plaintiff runs a proprietary
firm and her husband being power of attorney holder looking after the
business of the firm. On 20/04/2018 an amount of Rs.6,25,800/- is
wrongly remitted by the plaintiff’s bank account to the defendant’s
account. Therefore, the plaintiff requested the defendant to return it but
in vain. The plaintiff also sent notice to the defendant but defendant
failed to pay. Hence this suit.
3. The plaintiff served writ of summons upon defendant and
filed affidavit of service at Exh.2A. The defendant failed to appear.
Hence suit is proceeded ex-parte against the defendant vide order dated
20/07/2022.
4. The plaintiff examined her brother-in-law as PW No.1 at
Exh.6 and also filed documents at Exh.7 as follows :
Sr.No. Particulars
1 Copy of POA dated 10/02/2020.
2 Original Confirmation dated 13/12/2018.
3 Email dated 20/04/2018 to defendant.
4 Certificate of the plaintiff under Section 65(b) of Indian
Evidence Act alongwith the affidavit in support.
5 Original notice of plaintiff’s advocate dated 23/12/2019.
6 Original postal receipt dated 23/12/2020.
7 Original Returned Sealed Postal envelope.
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S. C. Suit No. 918/21. 3 Ex-parte Judgment (Exh.9).
5. The plaintiff closed her evidence vide pursis Exh.8.
6. Learned advocate for the plaintiff argued in support of the
case of the plaintiff.
7. Considering facts, evidence and submission of learned
advocate for the plaintiff, following points arise for determination of the
suit :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that she is
entitled to recover an amount of
Rs.6,25,800/- with interest at the rate
of 12% p.a. ?
Partly yes.
2. Is suit within limitation ? Yes.
3. What order and decree ? As per final order.
REASONS
AS TO POINTS NO.1 TO 3 :-
8. At the outset, it is apt to mention that pleadings and
evidence of the plaintiff remained unchallenged. Hence, there is no
reason to discard it at threshold.
9. In support of oral evidence of Jai Daga (PW No.1), the
plaintiff has filed documents issued by the bank to the defendant
wherein it is shown that on 20/04/2018 an amount from the plaintiff’s
account is transferred to the defendant’s account. The plaintiff has also
filed copy of e-mail and certificate under Section 65(B) of the Evidence
Act. All these documents show that an amount of Rs.6,25,800/- is
transferred wrongly to the account of the defendant. In absence of
evidence rebutted, there is no cause to discard the case of the plaintiff.
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S. C. Suit No. 918/21. 4 Ex-parte Judgment (Exh.9).
The suit is instituted on 21/02/2020. Hence it is within limitation.
10. The plaintiff claimed interest at the rate of 12% p.a. It is
case of the plaintiff that suit amount is wrongly transferred to the
defendant. In such circumstances, it would be just and proper to award
interest at the rate of 9% p.a. from the date of the suit till the date of its
realization. Accordingly point no.1 and 2 are answered.
11. Defendant failed to resist the suit. Non-payment of the
amount led the plaintiff to institute the suit. Hence, the plaintiff would
entitle to the cost of the suit. Accordingly in answer to point no.3
following order is passed :
- ORDER -
1. The suit of the plaintiff is partly decreed with cost as under :
Defendant to pay an amount of Rs.6,25,800/- with interest
at the rate of 9% p.a. from the date of suit till the date of realization
within two months of the order to the plaintiff.
2. Accordingly S.C.Suit No. 918/2021 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 24/04/2024. Mumbai.
1. Dictated on : 24/04/2024.
2. Transcribed on : 03/05/2024.
3. Checked on : 03/05/2024.
4. Correction carried on : 04/05/2024.
5. Signed on : 04/05/2024.
6. Delivered to Certified :
Copy Section on
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S. C. Suit No. 918/21. 5 Ex-parte Judgment (Exh.9).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/05/2024. 3.03 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 24/04/2024.
Judgment/Order signed by P.O. on 04/05/2024.
Judgment/Order uploaded on 08/05/2024.
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