Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 21.02.2018
Registered on 19.03.2018
Decided on 28.11.2018
Duration Yrs. M. Days
08 09
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.361 OF 2018
Fatema Shamim
An Adult of Mumbai, Age : 40 years,
Occupation : Interior Designer,
Having address at Flat NO.505, Bhurj
Burhan Saifee Park, Church Road, Marol,
Andheri (East), Mumbai400059. ...Plaintiff.
V/s.
Sapna Thanawala, an adult of Indian
Inhabitant, Age Not Known, Occupation :
Architect, Having address at R15, Jenkin
House, 3rd floor, Henry Road, Lane Ad ...Defendant.
Appearances:
Ld. Adv Mr.Shamim for plaintiff.
None for defendant. Hence, suit proceeded exparte against defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 28th November,2018
J U D G M E N T
(Exparte)
This is a suit for recovery of Rs.50,000/ with interest.
MHCC01-002689-2018
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2. In short, plaintiff came with a case that, plaintiff is a qualified
Interior Designer and practising in the said field for about 20 years.
Defendant is an Architect and carrying out her activities from the
address mentioned in the title clause.
3. Plaintiff submitted that, defendant had taken up an Ashram
Project at Jaipur and for that project she need help of plaintiff for
making designs. Defendant approached to plaintiff in the month of
December,2015 and agreed to pay total professional fees Rs.75,000/.
Out of that defendant had paid Rs.10,000/ on 10.12.2015 and
thereafter, paid sum of Rs.15,000/ on 03.03.2016 leaving balance of
Rs.50,000/. Plaintiff prepared altogether 172 drawings as required by
defendant for the said project as per specification and instructions given
by defendant. Defendant never raised objection about at any time.
However, defendant never paid the balance outstanding amount in
spite repeated requests, demand and Email. Plaintiff failed to pay the
outstanding amount of Rs.50,000/.
4. Plaintiff further submitted that, by Email dt.16.07.2017 plaintiff
called upon defendant to pay the outstanding amount of Rs.50,000/.
Plaintiff replied the said Email and admitted the liability. However,
she never paid the sum. Therefore, plaintiff issued demand notice
through her Advocate bearing Ref.No.224/2017 dt.25.07.2017.
Defendant refused to accept the said notice. Plaintiff also lodged police
complaint with Colaba Police Station against defendant for the act of
cheating. In spite of demand and requests defendant did not make
payment. Therefore, defendant filed this suit before this Court against
defendant for recovery of outstanding amount. Hence, this suit.
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5. Writ of summons came to be issued against defendant. Plaintiff
filed service affidavit at Exh.5. In spite of service defendant never
attended the Court. Therefore, suit proceeded exparte against
defendant.
6. In order to prove her claim plaintiff filed affidavit and list of
documents. Plaintiff proved the following documents :
D.sr.no.1 to D.sr.no.61 Correspondence by Email between plff
and deft.
D.sr.no.62, Plff email dt. 19/04/2016 at. 11.40p.m. to the deft
and plff email dt. 25/07/2017 at. 2.02 p.m. addressed to the deft.
D.sr.no.63, certificate under section 65 B of the Indian Evidence
Act in respect of all emails. D.sr.no.64, All the Messages (SMS).
D.sr.no.65, Certificate under section 65 B of the Indian Evidence
Act in respect of all Messages (SMS).
D.sr.no.66, Office copy of Plff Adv. Notice bearing Ref.
no.224/2017 dt. 25/07/2017.
D.sr.no.67, original postal receipt bearing no.RM576884234IN.
D.sr.no.68, original envelop returned with remark Intimation
posted reurned to sender along with the original
acknowledgement Card dt. 27/07/2017. D.sr.no.69, officer copy
of plff Adv. Notice bearing Ref. no.225/2017 dt. 25/07/2017 sent
to the Colaba Police Station.
D.sr.no.70, original postal receipt bearing No. RM576853815IN.
D.sr.no.71, original envelop returned with remark Intimation
posted reurned to sender along with the original
acknowledgement Card dt. 27/07/2017. D.sr.no.72, Original
particular of claim.
7. Heard learned Advocate for plaintiff. Perused the documents and
submissions.
8. On perusal of the various Emails exchanged between plaintiff
and defendant it is clear that, there is contractual relations between
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them. Defendant hired plaintiff for her project in Rajasthan. Plaintiff
rendered her services and plaintiff had not objected or raised any
dispute about the service offered by plaintiff at any time. Even plaintiff
had paid Rs.25,000/ to defendant leaving behind the balance of
Rs.50,000/. Therefore, now it is the obligatory on the part of plaintiff
to pay the said outstanding sum to defendant.
9. In spite of service of summons defendant did not appear before
this Court to rebut the claim of plaintiff. Therefore, claim of plaintiff
remains unchallenged and unrebutted. Hence, I have to accept the said
unchallenged claim of plaintiff. Therefore, suit filed by plaintiff for
recovery under O.XXXVII R.2 of C.P.C. needs to be accepted. Defendant
neither present nor rebutted the claim of plaintiff. Which clearly
establishes the claim of plaintiff and therefore, plaintiff is entitled to
recover amount which borrowed by defendant along with interest @
18% per annum. In spite of repeated demand and opportunity
defendant has not paid the amount. Therefore, costs of this suit needs
to be saddled on defendant.
10. The suit remains unchallenged and undefended. Therefore,
under partIII, R(E), schedule I of Bombay City Civil & Sessions Court
Rule, 1948 plaintiff becomes entitled for refund of 2/3rd court fee
voucher, if prayed. In the result, suit deserves to be decreed with costs.
Hence, I proceed to pass the following order :
O R D E R
1. Suit is decreed with costs.
2. Defendant do pay Rs.50,000/ along with interest @ 18
percent per annum on principal amount of Rs.50,000/
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to plaintiff from the date of filing of this suit till
realization of entire decreetal amount.
3. Defendant do bear her own costs with costs of plaintiff.
4. Decree be drawn up accordingly.
5. The 2/3rd Court fee refund voucher, as per rule, be
issued in favour of plaintiff, if prayed.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:28/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 28.11.2018
Transcribed on : 29.11.2018
Signed on : 29.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.11.2018 at 2.49 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 28.11.2018
Judgment/order signed by P.O. on 29.11.2018
Judgment/order uploaded on 29.11.2018
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