Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010025302020
Filed on :27.02.2020
Registered On :12.03.2020
Decided on :21.01.2022
Duration : Y-01/M-10/D-24
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 278 OF 2020
Exhibit- 4
CNR NO.- MHCC01-002530-2020
Mahendra Premchandji Jain
Age :57 years
Of Mumbai , an adult Indian Inhabitant,
residing at : 46, Modi Street, Ground Floor,
Fort, Mumbai- 400 001. ... Plaintiff
V/s.
Sunil Sakharam Sakpal
Age Not known, an adult Indian Inhabitant
Working for gain with Western Railway Store
Department, 4th Floor, , 5th Building, Station
Building, Mumbai- 400 020.
And Residing at, Sai Darshan Society,
Room No. 409, 1st Floor, at Kelhar,
Bhiwandi, Thane. ... Defendant
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendants.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 21/1/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The defendant was under liability to pay towards the plaintiff
hence, towards the discharge of said legal liability he drew and
delivered to the plaintiff a cheque dtd. 11.10.2019 bearing no.100087
drawn on The Mahanagar Co-op Bank Ltd.,Thane(W), Mumbai- 400
601 for valuable consideration of Rs.50,000/- . Said cheque on being
presented to the bank has been dishonored vide a memo of dishonor
dtd.15.10.2019 with a remark of “Account Blocked”. By virtue of
dishonor of said cheque and pursuant to the provisions of Negotiable
Instrument Act, the plaintiff has become entitled to recover said amount
of cheque alongwith interest at the rate of 18% p.a. from the date of
dishonor of cheque.
3. The plaintiff issued letter/notice through advocate on 2.11.2019
to the defendant calling upon him to pay the amount of
Rs.52,391.78ps/- alongwith accrued interest but the defendant failed to
comply with said requisition. The plaintiff averred that the defendant is
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liable to pay the outstanding amount of Rs.52,391.78ps/- with interest.
3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendant is liable to pay a
sum of Rs.52,391.78ps/- to the plaintiff and further interest at the rate
of 18% p.a on the principal amount from the date of suit till its
realization. Hence, this suit.
4. The suit summons were duly served on the defendant , he
appeared. Conditional leave was granted to defendant to contest the
suit, but he failed to be appear and contest the suit. Hence, suit is
posted for judgment as per order XXXVII Rule 2(3) of Code of Civil
Procedure 1908 judgment.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendant ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.52,391.78ps/-
with interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.03 i.e the list of
documents:
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Sr.
No.
Description of documents Exhibits
1 Cheque dtd.11.10.2019 being
Exhibit “A” to the plaint.
Exh. 3/1
2 Memo of Dishonour Dtd.
15.10.2019 being Exhibit “B” to
the Plaint
Exh. 3/2
3 Plaintiff’s Advocates’ letter dated
2.11.2019, being Exhibit “C” to the
plaint, alongwith the postal records
in connection therewith.
Exh. 3/3
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendant. The documents produced on record by the plaintiff shows
that the defendant issued the cheque to the plaintiff for the amount of
Rs. 50,000/- and said cheque came to be dishonored for insufficiency of
funds. Said amount is not paid by the defendant to the plaintiff.
Further, it reveals from the record that said transaction for issuance of
cheque took place on dtd. 11.10.2019, the notice/letter of demand was
issued to the defendant on dtd.2.11.2019 and the suit is filed on
27.2.2020. As such, the plaintiff’s claim in the suit is well within
limitation.
8. All the documents produced by the plaintiff at list Exhibit-
03 goes to establish that the defendant has issued cheque for Rs.
Rs.52,391.78ps/- towards the legal liability but staid cheque got
dishonored. The legal liability is not discharged by the defendant.
Therefore, the plaintiff is claiming Rs.52,391.78ps/- which is the
amount calculated with interest at the rate of 18% p.m from the date of
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dishonor of cheque till the filing of suit. Said amount is not repaid by
the defendant. Therefore, the defendant is liable to pay the outstanding
amount of Rs.52,391.78ps/- to the plaintiff. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.52,391.78ps/- from the defendant.
9. According to the plaintiff the outstanding dues against the
defendant is Rs.52,391.78ps/- and said amount is calculated alongwith
with interest at the rate of 18% p.m from the of dishonor of cheque till
the filing of suit. Apart from said amount which is due against the
defendant on the date of filing of the suit, the plaintiff has claimed
interest at the rate of 18% per annum on the principal amount. The
defendant neither appeared nor contested the suit. There is nothing on
record to show that the said translations between the parties was not
the commercial transactions. Therefore, I hold the plaintiff is entitled to
recover the principal amount alongwith interest at the rate of 18% p.a.
till realization of the amount. Therefore, I hold, the rate of interest at
the rate of 18% per annum would be just and proper to be awarded on
the principal sum of Rs.50,000/-. Hence, point no.1 is answer in the
affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.52,391.78ps/-from the
defendant with interest at the rate of 18% per annum on the principal
sum of Rs.50,000/- from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from the defendant.
Hence, in answer to point no.2, I proceed to pass the following order.
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ORDER
1. The defendant shall pay Rs.52,391.78ps/-(Rs. Fifty
Two Thousand Three Hundred Ninety One and
Seventy Eight paise Only) to the plaintiff, with interest
at the rate of 18% per annum on the principal sum of
Rs.50,000/- from the date of filing of the suit till its
realization.
2. The defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :21/1/2022 Gr. Bombay
Dictated on : 21.1.2022
Typed on : 21.1.2022
Signed on : 21.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21.1.2022 1.00p .m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
21.1.2022
JUDGMENT/ORDER signed by
P.O.on
21.1.2022
JUDGMENT/ORDER uploaded on 21.1.2022
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