Final Order 1

Order Details: Copy of Judgment
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MHCC010030252020
Lodged on 09/03/2020
Registered on 02/02/2021
Decided on 18/07/2022
Duration 2Y : 4 M : 9D
EXHIBIT-08
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 57 OF 2021
Seema Nandlal Talreja,
Adlt, Indian Inhabitant of Bombay,
aged 58 years,
carrying on business at 34, Dariya
Mahal-A, 80, Nepeansea Road,
Mumbai-400 006.
...Plaintiff
Versus
1. XPRO IT INNOVATIONS PVT.LTD .
Ltd. a company registered under the
companies Act, 1956 carrying on
business at Gala No.116, 1st Floor,
Niraj Ind. Estate, Opp. Sun Pharma,
Paper Box Lane, off Mahakali Caves
Road, Andheri(E), Mumbai-400 093.
And at
901, Sugee Heights, Dwarkesh Nagar,
Nahur Road, Opp. St.Pius School,
Mulund (W), Mumbai-400 080.
2. Jatin Vinaykumar Shah,
Adult, Indian Inhabiant of Bombay,
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Exparte Judg.in Sum SU No.57/2021
age not known residing and carrying
on business at 901, Sugee Heights,
Dwarkesh Nagar, Nahur Road, Opp.
St.Pius School, Mulund (W), Mumbai-
400 080.
3. Bhavini Jatin Shah,
Adult, Indian Inhabiant of Bombay,
age not known residing and carrying
on business at 901, Sugee Heights,
Dwarkesh Nagar, Nahur Road, Opp.
St.Pius School, Mulund (W), Mumbai-
400 080.
4. Pradeepkumar Chandrashekhar
Pandey
Adult, Indian Inhabitant of Bombay,
age not known residing and carrying
on business at Building No.13, CR
No.2, Nagari Nivara Parishad, Plot
No.5, Goegaon (East), Mumbai-400
065.
And also carrying on busienss at the
addess of Defendant No.1.
...Defendants
Appearance :
Adv. Ms. Kavita Lalwani for plaintiff.
None for defendant (Exparte).
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 18/07/2022
Judgment
By way of present Summary Suit, plaintiff prays that the
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Exparte Judg.in Sum SU No.57/2021
decree against the defendants for an amount of Rs.1,06,452/- along
with further interest at the rate of 18% p.a. on the principal amount of
Rs.83,330/-.
Plaintiff’s case-
2. Plaintiff contends that an amount of Rs.2 Lakh was advanced
by the plaintiff to the defendants by cheque dated 23/11/2017.
Defendants against the said payment issued Demand Bill of Exchange of
Rs. 2 lakh on the same date. Defendant Nos.2, 3 and 4 signed the said
Bill of Exchange on behalf of defendant No.1.
3. The plaintiff presented the Demand Bill of Exchange on
30/07/2018, however defendant No.1 dishonoured the same and as
such an amount of Rs.83,330/-. is still balance. Plaintiff further
contends that an amount was demanded by issuing demand notice
through an advocate on 04/12/2019. In spite of the said notice,
defendants did not pay the amount and therefore the present suit is
filed.
4. Plaintiff contends that Rs.1,16,670/- Lakh was returned by
the defendants. An amount of Rs.83,330/- is the outstanding. It is
further contended that for the payment of the said outstanding amount,
defendant No.3 had issued a cheque dated 05/08/2019 of Rs.83,330/-.
However, the said cheque was dishonoured with a remark “ Funds
Insufficient”.
5. Defendants were duly served with the writ of summons.
However, they did not appear before this Court and as such suit
proceeded exparte against them.
6. In support of claim, plaintiff filed her affidavit of claim at
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Exhibit-3 and reiterated her claim by recovery of Rs.83,330/- along with
interest at the rate of 18% p.a. Plaintiff has filed and relied upon
following documents.
Sr.
No.
Exhibit
No. Particulars
1 Exh.5 Bill of Exchange dated 23/11/2017.
2 Exh.6 Packed envelope of demand notice sent to the
Defendant No.1 returned unserved.
3 Exh.7 Packed envelope of demand notice sent to the
Defendant No.1 returned unserved.
7. So as to decide the present suit, following points arise for my
consideration. I have recorded my findings for the reasons, as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to
recover an amount of Rs.1,28,494/-
from defendants?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs.83,330/- from the
defendants along with
interest at the rate of
09% p.a. from
30/07/2018 till its full
realization
2. What order and decree? Suit is partly decreed as
per final order.
REASONS
As to Point No. 1-
8. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record the requisite
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evidence to prove her entitlement. Plaintiff contends on oath that an
amount of Rs.2, lakh were lent to the defendants and against that the
Demand Promissory Note was issued. Further contention of the plaintiff
is that out of 2 lakhs an amount of Rs.1,16,670/- was paid and amount
of Rs.83,330/- is the outstanding. The oral submission get boosted by
way of original Demand Bill of Exchange as well as demand notice.
Issuance of bill of exchange by defendants, itself shows the liability of
defendants to pay the amount mentioned in the bill of exchange. There
is no contra evidence to repell the contentions of the plaintiff.
9. In spite of service of summons defendants did not turn up to
the Court and therefore the suit was proceed exparte. Therefore
contentions of the plaintiff have gone unchallenged. Therefore, I find
no reason to discard her claim. Hence, suit is liable to be decreed.
10. Plaintiff has claimed interest at the rate of 18%p.a. from
31/07/2018. Admittedly, the said transaction does not seems to be a
commercial transaction. Claim of the plaintiff is at higher rate.
Nonetheless fact remains that an amount is outstanding since
dishonured of Bill of Exchange on 31/07/2018. Admittedly, the suit has
also filed after lapse of almost two and half years. Considering the
current rate of fixed deposit of nationalized bank, I find that the interest
at the rate of 9% p.a. would be just and proper. Hence, the order.
ORDER
A. Suit is partly decreed.
B. The Defendants do pay jointly and severally Rs.83,330/-
(Rupees Eighty Three Thousand Three Hundred Thirty
Only) to the Plaintiff along with interest at the rate of 9% p.a.
from 31/07/2018 till its realization.
C. Court Fees be refunded as per rules.
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Exparte Judg.in Sum SU No.57/2021
D. Decree be drawn up accordingly.
Date- 18/07/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 18/07/2022
Transcribed on : 19/07/2022
Signed on : 21/07/2022
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Exparte Judg.in Sum SU No.57/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/07/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
18/07/2022
JUDGMENT/ORDER signed by P. O. on 21/07/2022
JUDGMENT/ORDER uploaded on 22/07/2022
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