Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.248/2020
MHCC010024102020 Presented on : 25/02/2020
Registered on : 05/03/2020
Decided on : 01/09/2023
Duration : 03Y 06M 06D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.11
SUMMARY CIVIL SUIT NO.248 OF 2020
Mr. Sunkappa Gurappa Jadhav,
of Mumbai, an adult Indian Inhabitant,
Occupation :- carrying money lending business
at Lal Patra Chawl, No.251, Room No.10, Cross
Road, Dharavi, Mumbai-400 017.
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] ..Plaintiff
V/s.
Mr. Rafel Kashinath Salve,
of Mumbai, an adult Indian inhabitant,
Occupation Service, having his office address at
Mumbai Municipal Corporation for Gr. Mumbai,
B.M.C. Office, Department:- AEM/HW, Road-I
Employee Code No.3573990, Ps No.A-5004,
Designation: Labour, Sant Martiz Road, H/Ward,
Bandra West Mumbai – 400050, and also having
his residence address at Sai Darshan Building No.6,
A-Wing, Room No.201, Achole Road, Nalasopara
East, Taluka Vasai, Dist.: Palghar-401 209.
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] ..Defendant
Appearance :-
Mr. Balbheem Patil, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 01/09/2023
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No.248/2020
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.2,54,000/- under the demand promissory note. The plaintiff has
come with the case that he has advanced loan of Rs.2,00,000/- to the
defendant, who executed promissory note on 11/08/2018. The
defendant had agreed to pay the amount of Rs.2,00,000/- on demand
alongwith interest at the rate of 18% per annum. However, defendant
did not pay the loan amount, therefore, the plaintiff is entitled for
recovery of amount alongwith interest at the rate of 18% per annum.
2 The writ of summons was served upon defendant vide
Exhibit-05. He accepted the service, but refused to sign the
acknowledgment. As the defendant failed to appear before the Court,
suit proceeded ex-parte against him as per order in
roznama dated
13/10/2021.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the
defendant has executed demand
promissory note of Rs.2,00,000/- ?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
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3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the plaintiff
entered the witness box and relied on various documents under list
(Exhibit-07). Heard learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The plaintiff has tendered his Claim Affidavit (Exhibit-06)
alongwith documents as per list (Exhibit-07). On perusal of demand
promissory note, it reveals that it bears signature and thumb
impression of the defendant. In consequence of failure to pay the
amount under the demand promissory note, the plaintiff has issued a
notice on 03/01/2019. Thus, the plaintiff is entitled for recovery of
amount under the demand promissory note. The plaintiff is a money
lender having license bearing No.RBC-1434, hence, he is entitled to
recover the amount as a money lender. He also filed another
document related to his license, copy of Form No.10 and cashbook.
Thus, there is no reason to disbelieve the contentions of plaintiff,
which remains unchallenged. Hence, suit deserves to be decreed as per
the provisions of Order XXXVII Rule 2(3) of the Code of Civil
Procedure.
6 There is nothing on record to show that the defendant has
ever paid any amount under the demand promissory note. His absence
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and omission to appear before the Court on being served with the writ
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, it is established that the
defendant has executed the demand promissory note for
Rs.2,00,000/-.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e. notice
of advocate dated 03/01/2019, till its full realisation. In view of above
discussions, I answer point No.1 in affirmative and point Nos.2 and 3
in partly affirmative.
8 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.248/2020, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.2,00,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice issued by
the advocate of plaintiff on 03/01/2019, 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 dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 01/09/2023 C.R. No.15
Dictated on : 01/09/2023
Typed on : 01/09/2023
Signed on : 01/09/2023
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No.248/2020
“Certified to be true and correct copy of the original signed order”.
02/09/2023
at about 12.10 p.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 : 01/09/2023
Order signed by Hon'ble Judge on : 01/09/2023
Order uploaded on : 02/09/2023
at about 12.10 p.m.
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