Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010029412020
Presented on 06032020
Registered on 20032020
Decided on 21-04-2022
Duration Yrs. M. Days
02 01 15
CNR No. MHCC010029412020
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.292 OF 2020
Mr. Varun Ashvin Joshi
Adult, Indian Inhabitant, Hindu,
Age: 30 years, Occupation Self Employed
Residing at 22/E, Motiwala Juiblee Baug,
Opposite Navjeevan Society, Near Delhi
Bhojnalaya Lane, Tardeo,
Mumbai 400 007.
...Plaintiff.
V/s.
Mr. Anil Punamchand Solanki
Adult, Proprietor of Jai Chamunda
Enterprises, Room No.510, 5th floor,New
Progressive Building No. 3, Doctor
Compound, Dattaram Lad Marg,
Chinchpokli, Mumbai 400 012.
....Defendants.
M
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Appearances:
Ld. Adv. Mr. Vaibhav Parab for plaintiff.
None present for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 21st April, 2022
J U D G M E N T
(Exparte)
1. The present Summary Suit is filed for recovery of a sum of
Rs.36,69,925/ alongwith interest at the rate of 18% per annum from
the date of filing of suit till its realisation.
2. The plaintiff and defendant are known to each other and
defendant is a family friend of plaintiff. The defendant informed the
plaintiff that he is into Business of Construction. In the month of March
2017, the defendant approached the plaintiff for requirement of
financial assistance up to the tune of Rs.24,90,000/. The defendant
assured that he will return the amount within 3 months. The plaintiff
paid the amount to the defendant in installments. The plaintiff paid
sum of Rs.16,00,000/ through RTGS and further a sum of
Rs.8,90,000/ in cash at different occasions. Thereafter the defendant
failed to repay the amount within 3 months. On continuous demand by
plaintiff the defendant informed him that he can not repay the amount
and offered the plaintiff to purchase a flat in his project i.e. Tendulkar
Pride Mouje, Nandivali, Taluka Kalyan, District Thane. The Terms and
Conditions were reduced into writing in Memorandum of
Understanding. The defendant in the said Memorandum of
Understanding admitted that he had taken friendly loan from plaintiff.
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The defendant also agreed that if he will fail to repay the loan, he
would get the monthly tenancy transfer in the name of plaintiff. The
defendant also agreed to handover the vacant and peaceful possession
of the premises by executing the proper Sale Deed.
3. Even after execution of Memorandum of Understanding the
defendant had not complied with the Terms and Conditions. Due to
unavoidable circumstances, the project could not be completed and
therefore, the defendant issued a cheque of Rs.24,90,000/. The said
cheque on presentation was dishonoured. The plaintiff therefore,
issued Legal Notice to the defendant on 17.12.2019 calling upon the
defendant to pay the amount of Rs.24,90,000/ but the defendant
failed to comply the notice and therefore, the plaintiff filed the present
suit.
4. The defendant was duly served but he failed to appear and
therefore, suit was proceeded Exparte against defendant as per order
dated 24.08.2021.
5. Heard Learned Advocate for the plaintiff. The plaintiff in
support of the contention has filed this claim affidavit and the
compilation of documents vide Exhibit 3 & 4. The plaintiff reiterated
the contents of his claim in his claim affidavit. The plaintiff filed his
Bank Statement vide Exhibit 5 alongwith Certificate Under Section
65(B) of Indian Evidence Act. The Bank Statement of the plaintiff
shows that the plaintiff transferred the amount in the name of the
defendant. The plaintiff also relied upon the Memorandum of
Understanding vide Exhibit 7. The defendant in the Memorandum of
Understanding admitted the receipt of Rs.24,90,000/ towards friendly
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loan. However, the said Memorandum of Understanding did not
attained finality as the construction project could not be completed.
Towards the discharge of the liability the defendant issued cheque
dated 07.11.2019 vide Exhibit 8 to the plaintiff. The said cheque was
dishonoured as per the memo dated 11.11.2019 vide Exhibit 9. The
plaintiff also issued Legal Notice to the defendant vide Exhibit 10. The
defendant however, failed to repay the amount. It appears from the
documentary evidence of plaintiff that the defendant had taken friendly
loan from the plaintiff. The defendant accepted his liability in the
Memorandum of Understanding as well as by issuing cheques. He
however, failed to repay the amount. The defendant also remained
absent and failed to challenge the evidence of plaintiff. The
documentary evidence of the plaintiff shows that the defendant had
taken the friendly loan but failed to repay the same and therefore, he is
liable to pay the same.
6. The plaintiff demanded the principal amount with further
interest at the rate of 18% per annum. The interest at the rate of 18%
per annum is exorbitant and therefore, it cannot be granted to the
plaintiff. Considering the nature of transaction the interest at the rate
of 9% per annum will suffice the purpose of justice therefore, I,
proceed to pass the following order:
ORDER
1. The Summary Suit no.292 of 2020 is decreed with costs.
2. Defendant shall pay the amount of Rs.36,69,925/ (Rupees Thirty
Six Lacs Sixty Nine Thousand Nine Hundred and Twenty Five only) to
the plaintiff along with interest at the rate of 9 percent per annum on
the principal amount of Rs.24,90,000/(Rupees Twenty Four Lacs
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Ninety Thousand only) from the date of filing suit till its actual
realization.
3. Decree be drawn up accordingly.
4. Court fee if any be refunded as per rules to the plaintiff.
5. Judgment is dictated and pronounced in open court.
6. R and P be sent to Record Department.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 21042022 City Civil Court, Gr. MUMBAI
Dictated on : 21042022
Transcribed on : 25042022
checked on : 25042022
Signed on : 25042022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.04.2022 at 04.20 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
21.04.2022
Judgment/order signed by P.O. on 25.04.2022
Judgment/order uploaded on 25.04.2022
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