Final Order 5

Order Details: Ex-parte Judgement
Pdf Text: MHCC010029792020 Presented on 06/03/2020
Registered on 18/12/2020
Decided on 20/02/205
Duration 04Y: 11M: 14D
Exhibit 30
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 425 OF 2023
Mr. Prakash Shantilal Shobhawat ]
Mr. Prakashchand Shantilal Jain ]
of Mumbai, Indian Inhabitant, ]
Age 61 years, Occ: Business, ]
Karta of Prakashchand S. Jain HUF, ]
having address at Flat No. 2601, D Wing, ]
Ashok Tower, Dr. S. S. Rao Road, ]
Mumbai – 400 012. ]...Plaintiff
VERSUS
1. M/s. Neev Realtors ]
a paratnership firm having its office ]
at Neev Vittoria Nesbit Road, ]
Next ot Mazgaon Sales Tax Office, ]
Mumbai - 400010. ]
2. Chandulal Veerchand Jain ]
age : not known, Occupation: Business, ]
Partner of M/s. Neev Realtors ]
residing at 21, Kalpataru Apartments ]
Seth Motisha Lane, Mazgaon Lane, ]
Mazgaon, Mumbai – 400010. ]
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2 SUM SU NO.425/2023
3. Jitendra Chandulal Jain ]
age : not known, Occupation: Business, ]
Partner of M/s. Neev Realtors ]
residing at 21, Kalpataru Apartments ]
Seth Motisha Lane, Mazgaon Lane, ]
Mazgaon, Mumbai – 400010. ]
4. Neev Infrastructure Private Limited ]
a Company incorporated under the ]
Companies Act 1956, being partner of ]
M/s. Neev Realtors ]
having its registered office at ]
Neev Vittoria, Nesbit Road, ]
Near Mazgaon Sales Tax Office ]
Mumbai -40010. ]...Defendants
Appearance :
Ld. Advocate Mr. Rajesh Patil for the plaintiff.
Ld. Advocate Minal Parab for defendants 1 and 3.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 20/02/2025
J U D G M E N T
01. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (C.P.C.) for recovery of Rs. 33,24,547/-
alongwith interest and prayed for further interest from defendants.
Brief facts of plaintiff’s case may be summarized as under :-
02. As per the plaintiff, he is karta of Prakashchand H. Jain
HUF and a businessman dealing in textiles. Defendant No.1 is
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3 SUM SU NO.425/2023
partnership firm and defendants No. 2 to 4 are partners of defendant
No. 1 firm. Defendants are carrying on business of construction and
real estate. Plaintiff knows defendants No.2 to 4. Defendants
approached plaintiff for financial assistance, therefore plaintiff
advanced amount of Rs. 25,00,000/- by cheque No. 777427, dated
26/08/2015. Defendants paid interest from time to time till
31/03/2017. The defendants executed Confirmation Letter dated
01/04/2016 and acknowledged their liability of Rs. 26,64,250/-
signed by defendant No. 1 through its authorized signatory. Further, in
spite of several requests, defendants failed to repay the said amount.
Therefore, plaintiff issued notice dated 08/04/2019 (08/04/2018) and
reminder dated 18/04/2019 (18/04/2018) and called upon
defendants to return amount of Rs. 25,00,000/- with interest.
Defendants replied on 22/04/2019 to the said letter wherein they did
not dispute friendly loan however, sought time to pay the amount.
Thereafter, plaintiff again sent Letter dated 02/05/2019 and called
upon defendants to pay the amount. The defendants failed to repay
the outstanding amount. Therefore, plaintiff is entitled for interest @
14.04 % p.a. on the principal amount. Thus, plaintiff is entitled for an
amount of Rs. 33,24,547/- including interest. He is also entitled for
further interest on the principal amount. The last payment of
defendants is dated 03/04/2017 therefore, suit filed by the plaintiff is
within limitation. Hence, this suit.
03. The defendants No. 1 and 3 appeared in the matter and
filed their written statement vide Exh. 4 and denied the adverse
contents in the plaint. It is their contention that suit does not fall
under Section 2(1)(c) of Commercial Courts Act. Further, suit is bad
for mis-joinder of necessary party. It is denied that plaintiff and
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4 SUM SU NO.425/2023
defendants No. 2 to 4 knows each other. It is submitted that defendant
No. 3 is partner of defendant No. 1 firm however, defendants No. 2 to
4 are not the partners. They have not approached and borrowed the
loan from the plaintiff as contended and never executed Confirmation
Letter dated 01/04/2016 admitting their liability. The alleged
Confirmation Letter dated 01/04/2016 is false and fabricated and is
time barred. Further, defendants have denied the contents of the Letter
dated 08/04/2019 and 18/04/2019 issued by the plaintiff. Further,
they have not received Letter dated 02/05/2019 sent by the plaintiff.
The suit filed by the plaintiff is not maintainable and liable to be
dismissed.
04. Defendants No. 2 and 4 though served with the writ of the
suit summons failed to appear. Therefore, order was passed to
proceed ex-parte against them by the order dated 28/01/2021.
05. In support of claim, the plaintiff filed his affidavit of claim
at Exh. 8 and additional claim of affidavit at Exh. 8A and reiterated his
contention for recovery of Rs. 33,24,547/- along with the further
interest at the rate of 14.04% p.a. The plaintiff has filed and relied
upon the following documents vide Exhs. 12 to 24. Plaintiff has filed
evidence close pursis at Exh. 26.
Sr.
No. Exhibit No. Particulars
1 Exh.12 Original Bank Pass Book of Canara Bank showing
relevant debit entry of Rs. 25,00,000/-
2 Exh.13 Ledger statement of plaintiffs Canara Bank.
3 Exh.14 T.D.S. Certificates Form 26AS financial years 2015-
2016 and Assessment years 2016-2017 and 2017-
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5 SUM SU NO.425/2023
2018.
4 Exh.15 Original Confirmation letter dated 01-04-2016
5 Exh.16 Office copy of the Notice dtd. 08-04-2019.
6 Exh.17 colly. Original postal receipts and acknowledgment card.
7 Exh.18 Office copy of reminder letter dtd. 18-04-2019.
8 Exh.19 colly. Original postal receipts and acknowledgment card.
9 Exh.20 Original letter dtd. 22nd April, 2019 received by
Advocates for plaintiffs from the defendants.
10 Exh.21 Office copy of letter dtd. 2nd May 2019 reply to the
defendants letter dtd. 22nd April 2019.
11 Exh.22 colly. Original postal receipts and acknowledgment card.
12 Exh.23 Office copy of Particulars of claim.
13 Exh.24 Certificate on Affidavit under section 65B of the
Indian Evidence Act, on Ledger Bank statement.
14 Exh.25 Certificate on affidavit under section 65B of the
Indian Evidence Act, on TDS Certificates.
06. Defendants No. 1 and 3 did not file evidence in their
defence. They close their evidence vide pursis at Exh. 27.
07. In the suit my predecessor has framed issues vide Exh. 5
same are reproduced, thus, following issues arose for consideration to
which my findings are recorded against each of them for the reasons
given below:
Sr.
No.
Issues Findings
1. Whether plaintiff proves that he has
paid an amount of Rs. 25,00,000/-
to defendants as mentioned in para
3 of plaint ?
Yes
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6 SUM SU NO.425/2023
2. Whether plaintiff proves that he is
entitled to recover sum of Rs.
33,24,547/- ( principal amount of
Rs. 25,00,000/- plus interest of Rs.
8,24,547/-) from defendants ?
Partly yes, principal
amount of Rs. 25,00,000/-
and interest at the rate of
7% p.a. thereon from
01/04/2017.
3. Whether plaintiff proves that he is
entitled to recover interest on
principal amount of
Rs. 25,00,000/- from the date of
suit till its realization ? If yes, at
what rate of interest ?
Yes, at simple interest at
rate of 7% p.a. on
Rs. 25,00,000/- from the
date of filing of suit till its
realization.
4. Whether defendants No. 1 and 3
prove that defendants No. 2 and 4
are not partners of defendant No. 1
firm ?
No
5. Whether defendants No. 1 and 3
prove that suit is bad for
mis-joinder of the parties ?
No
6. Whether defendants No. 1 and 3
prove that suit is not maintainable
against them as a commercial suit ?
Yes, as decided on
31/03/2023in Commercial
Suit No. 483/2020.
7. What order as to costs ? Yes
8. What order and decree ? As per final order
R E A S O N S
As to Issues No. 1 to 3 :-
08. It is argued on behalf of the plaintiff that he knows
defendants No. 2 to 4 who are partners of defendant No. 1 firm.
Further, on request of defendants, he advanced an amount of
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Rs. 25,00,000/- by cheque and to support said contention filed
statement of passbook. Further, defendants paid interest from time to
time and to support said contention filed Form No. 26AS. Defendants
have acknowledged their liability by signing Confirmation Letter.
Plaintiff issued notice to defendants and called upon to make the
payment however, defendants neglected and failed to pay the
outstanding amount with interest. Plaintiff has proved his contention.
Hence, suit may be decreed with costs.
09. On the other hand, it is argued on behalf of defendants
No. 1 and 3 that initially suit was filed as a Commercial Suit and it has
been transferred to this Court as suit was not maintainable as
Commercial Suit in view of order dated 25/04/2023. Further, after
transferring suit to this Court plaintiff has not issued writ of summons
as per Order 37, therefore, the suit is not maintainable. It is further
argued that the suit of plaintiff is based on Confirmation Letter dated
01/04/2016 however, during cross examination plaintiff has stated
that he has no documentary evidence to show that he had advanced
loan to the defendants and defendants had promise to repay it along
with interest. It is further argued that defendants are not aware that
who has signed the Confirmation Letter therefore, it cannot be said
that Confirmation Letter is duly proved. Further, Ledger Account is not
maintained by defendants. Therefore, plaintiff has failed to prove that
he has advanced loan to defendants. Hence, suit may be dismissed
with costs.
10. Perused plaint, written statement, oral and documentary
of evidence on record. Heard both the parties. All Issues are
interrelated, hence required common discussions. As per plaintiff he
has advanced an amount of Rs. 25,00,000/- to defendants as a loan by
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cheque. Defendants have denied said fact. However, plaintiff has filed
his passbook at Exh. 12. On perusing said passbook, it appears that on
26/08/2015 an amount of Rs. 25,00,000/- has been withdrawn vide
cheque and it has been credited in the Account of defendant No. 1.
Further, it is the contention of plaintiff that defendants have paid
interest from time to time till 31/03/2017. Plaintiff has relied on
entries in the passbook at Exh. 12. On perusing said passbook, it
appears that plaintiff has relied on entries dated 15/10/2015,
04/04/2016, 27/01/2016 and 03/04/2017. Further, plaintiff has field
Ledger Statement of plaintiff's Canara Bank at Exh. 13. On perusing
said document, it appears that interest is paid through the account of
defendant No. 1 and it substantiate the contention of plaintiff. Further,
the plaintiff also filed Form No. 26A at Exh. 14 to substantiate his
contention that defendant after deducting TDS has paid interest to the
plaintiff.
11. It is argued on behalf of defendants No. 1 and 3 that
Prakashchandra PW1 has admitted in cross-examination that he does
not have documentary evidence to show that he has advanced loan to
defendants. Though, it has come in the cross examination of plaintiff
that he has no documentary evidence to show that he has advanced
loan to defendants on friendly relations and defendants have promised
to repay loan with the interest. However, as discussed above from
entries in Passbook at Exh. 12 and Ledger Statement at Exh. 13 as well
as TDS Certificate Form No. 26AS at Exh. 14 shows that defendants
have received an amount of Rs. 25,00,000/- and he had paid the
interest after deducting TDS.
12. Further, as per the plaintiff, defendants have
acknowledged the debt and liability by signing on Confirmation of
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Account dated 01/04/2016 at Exh. 15. On perusing said Confirmation
of Account, it appears that it bears the signature of defendant. Further,
as per said Confirmation of Accounts, defendants have admitted
liability of Rs. 26,64,250/-. Though, defendants No. 1 and 3 have
pleaded in their written statement that Confirmation of Accounts is
false and fabricated, it is pertinent to note that not a single suggestion
to that effect is given to the plaintiff in cross examination. It is argued
on behalf of defendants No. 1 and 3 that plaintiff is not aware that
who had signed the Confirmation Account. However, on perusing cross
examination in para 27, plaintiff has specifically denied the suggestion
that it does not bear signature of defendant No. 3. On the contrary, it
has come on record that Confirmation of Account at Exh. 15 is signed
by defendant No. 3. Moreover, as discussed above defendants No. 1
and 3 have failed to bring material on record that confirmation of
account is false and fabricated. Therefore, confirmation of accounts at
Exh. 15 is duly proved.
13. Further, plaintiff had issued notice dated 08/04/2019 at
Exh. 16 and reminder on 18/04/2019 at Exh. 18 to defendant No. 1
and called upon to repay outstanding amount with interest. Defendant
No. 1 has replied vide letter dated 22/04/2019 vide Exh. 20. On
perusing said reply, it appears that defendant No. 1 has sought time to
verify the account of statement. It is pertinent to note that they have
not denied the contents in the notice wherein plaintiff has specifically
contended that he has advanced an amount of Rs. 25,00,000/- and
called upon them to make the payment of said amount with interest at
the rate of 14.04% p.a. Further, as defendants failed to make the
payment therefore, plaintiff has issued Letter dated 02/05/2019 at
Exh. 21 by RPAD which is received by defendant No. 1. Thus, from
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10 SUM SU NO.425/2023
oral and documentary evidence on record that plaintiff has proved that
he had advanced an amount of Rs. 25,00,000/- to defendants more
particularly to defendant No. 1.
14. Plaintiff has claimed interest at the rate of 14.04% p.a.
Admittedly, plaintiff has not brought on record any documentary
evidence to show that what was the agreed rate of interest between
the plaintiff and defendants. However, plaintiff has claimed interest at
the rate of 14.04% p.a. On perusing confirmation of account at
Exh. 15, it appears that defendants have paid interest at the rate of
10% p.a. Therefore, though there is no written contract between the
parties however, it appears that defendants have agreed to pay interest
at the rate of 10% p.a.
15. Thus, from oral and documentary evidence plaintiff has
proved that he has advanced an amount of Rs. 25,00,000/- to
defendants. Therefore, as discussed above, plaintiff is entitled for an
amount of Rs. 25,00,000/- towards principal amount. However, the
rate of interest at the rate of 14.04% p.a. claimed by the plaintiff is
excessive in nature. Therefore, I am of the view that in view of Section
34 of C.P.C. it would be just and prover to grant interest at the rate of
7% p.a. on principal amount from 01/04/2017 till its realization.
Hence, I answer Issue No.1 in affirmative, Issue No. 2 in partly
affirmative and Issues No. 3 accordingly.
As to issues No. 4 and 5 :-
16. Both issues are inter related hence, discussed together in
order to avoid repetition of facts and evidence. The burden was cast on
the defendants No. 1 and 3 to prove that defendants No. 2 and 4 are
not partners of defendant No. 1 firm. Further, suit is bad for
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11 SUM SU NO.425/2023
mis-joinder of parties. It is pertinent to note that defendants have
neither put suggestion to the plaintiff during cross examination that
defendants No. 2 and 4 are not partners nor adduced any evidence to
show that they are not the partners of defendant No. 1 firm. Further,
there is no material on record to show that how suit is bad for
mis-joinder of parties. So far as, issue No. 6 whether suit is
maintainable as a commercial suit is already decided by my
predecessor on 31/03/2023 in Commercial Suit No. 483/2020 that
suit is not maintainable as commercial suit. Hence, I answer Issues No.
4 and 5 in negative.
As to issues No. 6 and 7 :-
17 Thus, from facts and evidence on record, it is proved that
plaintiff had advanced an amount of Rs. 25,00,000/- to defendants
and defendants failed to repay said amount. Further, plaintiff is also
entitled for interest as discussed above and costs of suit. As defendants
No.1 and 3 failed to prove that defendants No.2 and 4 are not partners
of defendant No. 1 firm. Even, defendants No.2 and 4 have not
challenged evidence of plaintiff. Therefore, I am of the view that all
defendants are jointly and severally liable to pay outstanding amount
to the plaintiff with interest. Hence, Issues No.6 and 7 is answered in
affirmative and in answer to Issue No. 8, I proceed to pass following
order :-
O R D E R
1) Summary Suit No. 425 of 2023 is hereby partly decreed with the
costs.
2) The defendants shall jointly and severally pay an amount of
Rs. 25,00,000/- (Rupees Twenty Five Lakhs only) to the
plaintiff.
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3) The defendants shall pay to the plaintiff simple interest on
Rs. 25,00,000/- at the rate of 7% p.a. from 01/04/2017, till its
full realization.
4) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 20/02/2025
Dictated on: 20/02/2025
Corrected & signed on: 24/02/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
25/02/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 20/02/2025
JUDGMENT/ORDER signed by P. O. on 24/02/2025
JUDGMENT/ORDER uploaded on 25/02/2025
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