Final Order 1

Order Details: Ex-parte Judgement
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MHCC010028492019 Presented on : 08-03-2019
Registered on : 08-04-2019
Decided on : 15-11-2021
Duration : Y M D
02 08 07
BEFORE MUMBAI CITY CIVIL COURT AT GR. MUMBAI.
COMMERCIAL SUIT NO.328 OF 2021
(SUMMARY SUIT NO.474 OF 2019)
Presided Over by HHJ Shri. S. U. Hake
Ex.12
Shri Vinod Dattaram Kokate
Age: 55 years,Occupation : Business
Residing at 1803, 18th Floor, Vijaya Residency,
A Wing, Lalbaug Market, Lalbaug,
Mumbai 400012. ..Plaintiff
VERSUS
1. Sundarrao Benajmine Tegaram
Age about 47 years, Occ.Business
Presently residing at Flat No. B13,
Mithul Enclave CHSL, Opp. Jihamata
Nagar, Mahul Road, FCI Chembur,
Mumbai 400074.
2. Keturani Sundarrao Tegaram
Age about 42 years, Occ.Housewife
Presently residing at Flat No. B13,
Mithul Enclave CHSL, Opp. Jihamata
Nagar, Mahul Road, FCI Chembur,
Mumbai 400074. ..Defendants
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Ld. Advocate Isha Jaifalkar for plaintiff.
Defendants Exparte.
JUDGMENT
(Delivered on 15th November, 2021)
1. Suit is for recovery of an amount of Rs.13 lacs.
Briefly stated, plaintiff's case, is as under:
2. Plaintiff does the business of binding work and
printing press. Defendant No.1Sunderrao does the business of
electrical contractor. Defendant No.2 is wife of defendant No.1.
Defendants purchased one flat at Kharghar by way of registered
agreement dated 08/07/2015. For that purpose, they were in
need of Rs.2.5 lacs. They requested plaintiff for an amount of
Rs.2.5 lacs on 03/11/2016. Plaintiff paid said amount to
defendants. Defendants repaid said amount on 16/01/2017 to
plaintiff. Defendants took friendly loan of Rs.10 lacs during the
period from November 2016 to 16/04/2018 whenever they were
in financial crunch or faced financial difficulties in their business.
3. In April 2018, defendants received notice from
Corporation Bank asking them to take possession of the flat. For
that purpose, defendants were in need of Rs.3 lacs. Defendants
made demand of Rs.3 lacs to plaintiff. However, plaintiff was
hesitant to pay said amount to the defendants as defendants
failed to pay earlier amount of Rs.10 lacs. Defendants were in
dire need of Rs.3 lacs for the purpose of taking possession of said
flat. Therefore, considering the request of defendants, plaintiff
paid an amount of Rs.3 lacs by RTGS. On 20/04/2018,
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defendants accepted and acknowledged receipt of Rs.10 lacs by
way of Promissory Note Cum Undertaking, during the period of
November 2016 to 16/04/2018. They have also accepted receipt
of Rs.3 lacs by RTGS. Defendants also handed over three post
dated cheques of total amount of Rs.13 lacs. Defendants failed to
make payment of the said amount, therefore plaintiff deposited
those cheques for encashment, but, those cheques were returned
unpaid with remarks of bankers as 'funds insufficient'. Inspite of
making repeated demands, defendants failed to make the
payment. Hence, this suit.
4. As per service affidavit (Ex.8), defendants were duly
served with writ of summons. But, they failed to appear before
the Court. Therefore, suit proceeded without appearance of
defendants.
5. Heard Ld. advocate for plaintiff. I have also gone
through the written notes of arguments (Ex.11).
6. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff prove that
an amount of Rs.13,00,000/
is outstanding against the
defendants ?
Proved
2. Whether the plaintiff is
entitled to suit amount?
Yes
3. What order? Suit is partly decreed as
per final order.
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REASONS
Point Nos.1 and 2
7. In order to substantiate the claim, plaintiff has filed
his claim affidavit at Ex.9. He has reiterated all the facts pleaded
in the plaint. Plaintiff also filed on record original documents
which consists of demand promissory note dated 20.04.2018
executed by defendants and cheques issued by defendants. The
promissory note cum undertaking executed by defendants shows
that defendants have acknowledged receipt of an amount of Rs.13
lacs from plaintiff. Defendants promised to pay said amount to
plaintiff by executing the demand promissory note. Defendants
also issued three cheques for repayment of said amount.
Particulars of those cheques are also mentioned in the demand
promissory note cum undertaking. The documents on record
shows that cheques were dishonoured for the reason of
insufficient fund in the account of defendant No.1. Thus,
plaintiff's claim is well supported by documents filed on record.
As stated above, inspite of service of writ of summons, defendants
failed to tender their appearance, and therefore, plaintiff’s claim
u/s. 37(2) of C.P.C. needs to be accepted. Plaintiff is entitled to
get decree for the said amount.
8. Plaintiff claimed interest at the rate of 18% p.a.
Rate of interest is not agreed between the parties. But,
considering the nature of transaction, plaintiff is entitled to the
interest at the rate of 9% p.a. from the date of filing of the suit till
the date of decree and further interest of 6% p.a. from the date of
decree till it’s realization. Point Nos.1 and 2 are answered
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accordingly. In the result, following order:
ORDER
1. Suit is partly decreed with costs.
2. Defendant nos.1 and 2 shall pay an amount of
Rs.13,00,000/ (Rs. Thirteen lacs only) with interest @ 9%
p.a. to plaintiff from the date of the suit till the date of
decree. Defendant nos.1 and 2 shall pay further interest on
principal amount of Rs.13,00,000/ (Rs. Thirteen lacs only)
@ 6% p.a. from the date of decree till it’s realization.
3. Court fees be refunded as per (E) Rules framed under
Section 11(2) of the Bombay City Civil Court Act, 1948, for
the refund of Institution Fee.
4. Decree thus follow.
15/11/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/11/2021
Transcribed on : 15/11/2021
Signed on : 17/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
20/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
15/11/21
Judgment and order signed by
P.O.
17/11/21
Judgment/order uploaded on 20/11/21
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