Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 23.02.2018
Registered on 19.03.2018
Decided on 14.11.2018
Duration Yrs. M. Days
07 25
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.362 OF 2018
1. Mrs. Nandini Prabhakar Haldankar
Age 60 years, Indian Inhabitant, having
address at C/203, Customs Colony, Mint
road, Andheri (E), Mumbai400 059.
2. Mr.Prabhakar Pandurang Haldankar,
Age 63 years, Indian Inhabitant, having
address at C/203, Customs Colony, Mint
Road, Andheri (E), Mumbai400 059 ...Plaintiffs.
V/s.
Mr.Sitaram Dagdu Khopkar,
Age 49 years, Indian Inhabitant, having
address at Flat No.1801, 18th Floor, Bldg.,
No.2/A, STDS, Std. China Sewri Mill, CTS
No.5/209 & 210, F/S B.M.C. Ward, Ram
Tekdi Vibhag, T.J. Road, Sewree, Mumbai
400 015. ..Defendant
Appearances:
Ld. Adv Mr. for plaintiff.
None for defendant. Hence, suit proceeded exparte against defendant.
MHCC01-002857-2018
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CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 14th November,2018
J U D G M E N T
(Exparte)
This is a suit for recovery of Rs.26,31,951/ with interest.
2. In short, plaintiffs came with a case that, they are happens to be
husband and wife and resident at the address mentioned in the title
clause. Defendant is also a permanent resident of Mumbai at the
address mentioned in the title clause.
3. Plaintiff submitted that, they were in search of flat in Mumbai
city. They were also decided that, flat would be purchased in the name
of defendant No.1. While searching the flat plaintiffs came in contract
with person namely Sudhir Sawant at Kala Nagar, Bandra (E) and he
gave reference of one Mr.Sitaram Dagdu Khopkar i.e defendant to
plaintiffs. On 28.07.2005 said Sudhir Sawant took plaintiff No.2 at the
residence of defendant (as mentioned in the title clause of plaint). At
that time defendant No.2 showed one flat to plaintiff No.2. Plaintiffs
were agreed to purchase the flat for consideration of Rs.21 Lakhs and
accordingly plaintiffs and defendant were entered into a Memorandum
of Understanding (MOU) on 01.08.2015. As per MOU plaintiffs issued
two post dated cheques bearing No.864245 (dt.13.08.2015) No.864246
(dt.13.08.2015) for Rs.Ten Lakhs and Rs.Five Lakhs. The said cheques
were honoured and plaintiffs agreed to pay balance of Rs.Six lakhs after
delivery of flat.
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4. Plaintiff submitted that, on 30.09.2015 plaintiffs paid Rs.Four
Lakhs vide cheque bearing NO.864250 dt.30.09.2015. In all plaintiffs
paid consideration of Rs. Nineteen Lakhs to defendant. Defendant also
agreed to execute all necessary documents in favour of plaintiff as per
MOU. As plaintiffs desirous to take possession of the flat, they
continuously contacted defendant and defendant told plaintiff NO.2 to
wait for another period of three months. Again in the month of
May,2016 when plaintiff No.2 contacted to defendant in connection
with the flat, defendant avoided to complete the transaction and
defendant will return back Rs.19 lakhs and defendant issued two posted
dated cheque bearing Nos.101698,101699 dt.20.04.2016 for Rs.Ten
Lakhs and Rs.Nine Laksh respectively. The said cheques were
dishonoured due to insufficient of funds when presented in the bank by
plaintiffs. On the request of defendant, plaintiff No.2 again presented
both the said cheques in bank on 11.07.2016 for encashment. But they
were again dishonoured due to insufficient of funds.
5. Plaintiff submitted that, since both the cheques were
dishonoured, defendant assured plaintiff No.2 to return Rs.Nineteen
Lakhs as well as additional amount of Rs.Two Lakhs on or before
30.06.2016. Accordingly defendant signed and executed declaration
dt.06.05.2016 and agreed to transfer Rs.21 lakhs through NEFT in the
account of plaintiff No.2. In spite of this declaration defendant failed
and neglected to pay the amount to plaintiffs. Therefore, plaintiffs
issued legal notice dt.06.08.2016 to defendant called upon him to pay
the amount of dishonoured of cheques within 15 days. However,
defendant neither replied the notice nor paid the amount. As plaintiffs
smelling fraud, plaintiff No.2 lodged FIR against defendant for the
offence punishable under Section 420,506 (2), 34 of Indian Penal Code.
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The case under this crime is pending in the Court of Metropolitan
Magistrate, Dadar, Mumbai. Even after repeated requests, demand and
lodging of FIR, defendant did not pay heed to the requests of plaintiffs,
therefore, plaintiffs approached to this Court against defendant for
recovery of amount with interest. Hence, this suit.
6. Writ of summons came to be issued against defendant. It came
to be served and accordingly plaintiffs filed service affidavit at Exh.5. In
spite of service none appeared on behalf of defendant. Therefore, suit
proceeded exparte against defendant.
7. In order to substantiate its claim, plaintiffs filed evidence affidavit
at Exh.6 and compilation of documents at Exh.7. Plaintiffs proved the
following documents during the course of argument :
8. Heard learned Advocate for plaintiff. Perused the record and
submissions.
9. On perusal of Memorandum of Understanding dt.01.08.2015
entered between plaintiff No.1 and defendant was agreed to sell flat
situated in the building of Std.China Sewre Mill, C.T.S. No.5/209 and
201, F/S B.M.C. Ward, Ram Tekadi Vibhag, T.J. Road, Sewree, Mumbai
and accordingly plaintiffs performed their part by paying part
consideration of Rs.19,00,000/ to defendant. However, on one or the
other count defendant avoided to handover possession of the flat, as
agreed by him. Neither defendant had paid the consideration of
Rs.19,00,000/ to plaintiffs. Therefore, it is clearly appear that,
defendant has not fulfilled his part as per MOU. Even plaintiff No.2 has
lodged criminal complaint against defendant about cheating and other
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relevant sections of IPC. The said criminal case is pending in the Court.
All these circumstances, clearly shows that, defendant agreed to
handover the possession of flat and received sum against the flat from
plaintiffs. But neither defendant handover the possession of flat nor
returned the consideration of flat received from plaintiffs. Therefore, I
have no hesitation to accept the claim of plaintiffs.
10. The evidence of plaintiffs and documents produced and proved
by them, are remain unchallenged and unrebutted, as defendant did not
dare to attend the Court in spite of service of writ of summons.
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, plaintiffs are entitled to recover amount from defendants
along with interest 16% 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.
11. 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.26,31,951/ along with interest
@ 16 percent per annum on principal amount of
Rs.21,00,000/ to plaintiff from the date of filing of this
suit till realization of entire decreetal amount.
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3. Defendant do bear his 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.:14/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 14.11.2018
Transcribed on : 17.11.2018
Signed on : 17.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.11.18 at 3.39 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 14.11.18
Judgment/order signed by P.O. on 17.11.18
Judgment/order uploaded on 17.11.18
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