Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum.Suit No. 511/19. 1 Ex-parte Judgment (Exh.48).
MHCC010030062019
Presented on : 15-03-2019
Registered on : 30-04-2019
Decided on : 16-09-2022
Duration : 3 years, 6 months, 1 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMARY SUIT NO. 511 OF 2019
Exh.48.
CIFCO LIMITED )
[Formerly known as Champaklal )
Investment and Financial Consultancy Ltd.] )
a Company incorporated under the )
Companies Act, 1956 and having its )
registered office at Bhupen Chambers, )
Ground floor, Dalal Street, )
Fort, Mumbai – 400001 )...PlaintiffCompany
Versus
Kalpesh Dineshchandra Patel )
Aged: 44 years, Occupation: Business )
of Ahmedabad, Indian inhabitant )
residing at 14, Manichandra Society, )
Vibhag3, Opposite Surdhara Circle, )
Sun and Step Club, Road, Thaltej, )
Ahmedabad – 380 052 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 16th SEPTEMBER, 2022.
Shri Rajesh Kanojia, Advocate for the plaintiff.
Defendant (Exparte).
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Sum.Suit No. 511/19. 2 Ex-parte Judgment (Exh.48).
EXPARTE JUDGMENT
1. The plaintiff has filed the suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff company was initially known as
'Champaklal Investment and Financial Consultancy Limited' (for short,
'CIFCL'). Later on, it came to be known as 'CIFCO Limited'. The plaintiff
company is engaged in providing services to the clients i.e. (i) locating
missing shareholders, (ii) collecting unpaid and unclaimed amounts of
dividends, (iii) obtaining duplicate share certificates, (iv) obtaining any
bonus or split share certificates, (v) transferring the joint ownership to a
single ownership, (vi) assisting in deleting the name of the dead person
and transferring ownership of shares to the rightful joint owners and
(vii) resolving estate issues. The plaintiff is Wealth Locater and the
defendant is the client of the plaintiff.
3. The plaintiff and defendant entered into the Agreement
dated 03/03/2016. The defendant agreed to pay initial retained fee of
Rs.1,000/ and 20% on the market value of the shares prevailing on the
day of receipt of shares and also 20% on dividends. The defendant
instituted a specific Power of Attorney dated 30/06/2016 in favour of
the plaintiff company to do acts and things for and on behalf of the
defendant as mentioned in it. The plaintiff drafted letter dated
07/04/2016 mentioning details of the defendant's shares in Blue Dart
Express Limited under Folio No. KO2552 and sought the procedure for
obtaining duplicate share certificates and forwarded the letter with
signature of the defendant to Link Intime India Private Limited being
Registered Transfer Agent of the Blue Dart. Blue Dart's agent sent reply
dated 29/04/2016 to the letter dated 07/04/2016. With this regard,
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Sum.Suit No. 511/19. 3 Ex-parte Judgment (Exh.48).
several correspondences were exchanged between the plaintiff and the
Blue Dart as enumerated in para 3(j) of the plaint.
4. As a result of efforts taken by the plaintiff, the defendant
received 300 shares of the Blue Dart having market value of each share
of Rs.3,750/ amounting to Rs.11,25,000/. Accordingly, the plaintiff
company claimed 20% share i.e. Rs.2,65,500/ (principal amount of
Rs.2,25,000/ plus interest) as per Agreement dated 03/03/2016. Even
after receiving the bill of Rs.2,65,500/, the defendant did not make
payment. Then, the plaintiff sent several emails to the defendant
during 04/04/2018 to 13/07/2018 as elaborated in para 3(k) of the
plaint. Ultimately, the plaintiff issued legal notices dated 24/09/2018
and 31/10/2018 through his advocate to the defendant calling upon to
clear the outstanding bills, but the defendant did not reply the notices.
Hence, the plaintiff has filed the suit for recovery of Rs.2,65,500/ with
interest at the rate of 18% p.a. on the principal amount of Rs.2,25,000/
from the date of suit till realization, with cost.
5. In this suit, my learned predecessor relied upon affidavit of
service (Exh.5) and passed exparte order against the defendant as per
roznama dated 22/07/2019. Then, the plaintiff examined Bhupen Dalal
on evidence affidavit (Exh.5). (Exh.5 is given to affidavit of service as
well as evidence affidavit. Hence, affidavit of service is marked as
Exh.5A.). He also filed additional evidence affidavit (Exh.9).
Documents filed with list of documents (Exh.6) are marked as Exh.7, 8
and 13 to 41. Documents filed with additional list of documents
(Exh.10) are marked as Exh.11 and 12. One more list of documents
(Exh.43) is filed and documents (Exh.44 and 45) came to be exhibited.
Then, PW 1 Bhupen filed one more additional evidence affidavit
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Sum.Suit No. 511/19. 4 Ex-parte Judgment (Exh.48).
(Exh.42). Evidence closed pursis is filed at Exh.46. Learned counsel
Rajesh Kanojia for the plaintiff filed written notes of arguments
(Exh.47). He also advanced oral arguments.
6. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.2,65,500/ ? In the Affirmative.
2. Does the plaintiff prove that he is
entitled to recover amount of interest
on principal sum of Rs.2,25,000/ ? If
yes, at what rate of interest ? In the Affirmative.
@ 12% p.a.
3. What order as to costs ? As per final order.
4. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
7. Contents in evidence affidavit (Exh.5) filed by witness
Bhupen Dalal reveals that the plaintiff had entered into an agreement
dated 03/03/2016 (Exh.8) with the defendant for assisting him in
recovery of 300 shares of the Blue Dart having market value of
Rs.11,25,000/ and the plaintiff company claimed 20% of it i.e.
Rs.2,25,000/ with accrued interest at the rate of 18% p.a. till the date
of filing of the suit. Email communication and other correspondence
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Sum.Suit No. 511/19. 5 Ex-parte Judgment (Exh.48).
between the parties (Exh.16 to 30) show that the plaintiff had taken
steps for recovery of shares. In short, material on record is sufficient
enough to prove services rendered by the plaintiff to the defendant.
There is clear reference of 20% value of the accrued unclaimed dividend
and obtained duplicate share certificates has to be paid as fees to the
plaintiff. The plaintiff has proved his case with the help of oral and
documentary evidence. Evidence of the plaintiff is unchallenged for
want of crossexamination.
8. So far as interest is concerned, there is no clause in the
agreement (Exh.8) or any other document postulating responsibility
upon the defendant to pay interest on principal amount at the rate of
18% p.a. Considering nature of transaction, rate of interest is liable to
be reduced to some extent. Interest at the rate of 12% p.a appears to be
just and reasonable considering average range of interests in
commercial transactions. For all above discussion, the suit is liable to be
decreed with costs with variation in interest rate as discussed above.
Accordingly, I record my findings as to Point No.1 and 2 in the
affirmative with reduction in rate of interest to the extent of 12% p.a.
Hence, I pass the following order :
ORDER
1. Summary Suit No. 511/2019 is partly decreed.
2. The defendant is directed to pay amount of Rs.2,65,500/
(Rupees Two Lakh Sixtyfive Thousand Five Hundred Only)
to the plaintiff within three months from the date of
decree.
3. The defendant is further directed to pay interest @ 12%
p.a. on the principal amount of Rs.2,25,000/ to the
plaintiff from the date of filing of the suit till its realization.
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Sum.Suit No. 511/19. 6 Ex-parte Judgment (Exh.48).
4. The defendant shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 16/09/2022. Mumbai.
1. Dictated on : 16/09/2022.
2. Transcribed on : 16/09/2022.
3. Corrected on : 17/09/2022.
4. Signed on : 19/09/2022.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/09/2022. 1.04 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 16/09/2022.
Judgment/Order signed by P.O. on 19/09/2022.
Judgment/Order uploaded on 19/09/2022.
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