Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 01.03.2018
Registered on 12.03.2018
Decided on 03.12.2018
Duration Yrs. M. Days
08 21
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.312 OF 2018
MRS. MAJULA BALU GAIKWAD
Aged 43 years, Indian Inhabitant of
Mumbai, residing at Room No.21,
Pachkalshi Wadi, Siddeshwar Trust
Devalaya Dharmashala, Ferbunder,
Ghodapdev, Mumbai400 033. ...Plaintiff.
V/s.
MR. DATTARAM VISHNU KHADE,
Age Not known,
Prop. Of Shreenath Real Estate &
Investment,
Adult, Hindu, Indian Inhabitant of Mumbai,
Proprietor of M/s. Shreenath Real Estate &
Investment, Office at Shop No.1, Janab
Building, 131/133, Rraju Kamthi Chawl,
Subhash Lane, R.B. Marg, Ghodapdev,
Mumbai400 033.
Also
Residing at Room NO.435, Ramabai Coloy,
Near Durgamata Mandir, Priyadarshani
Zopadpatti Road No.2, Ghatkopar (East),
Mumbai400 075.
Also
Presently at Arthur Road Jail, J.R. Boricha
Marg, Lower Parel, Mumbai400 013. ...Defendant.
MHCC01-003051-2018
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Appearances:
Ld. Adv Mr. Harish Pawar for plaintiff.
None for defendant. Hence, suit proceeded exparte against defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 03rd December,2018
J U D G M E N T
(Exparte)
This is a suit for recovery of Rs.22,00,000/ with interest.
2. In short, plaintiff came with a case that, plaintiff and defendant
acquainted with each other for a long period and residing in the same
locality. Defendant was dealing in the business as estate agent in the
name and style as “Shreenath Real Estate & Investment” as a sole
proprietor.
3. Plaintiff submitted that, somewhere in the month of June,2015
she intended to purchase a suitable residential house and therefore,
approached to defendant. Defendant informed that he has good
proposal in the New Hind Mill Mhada colony of Ghodapade, wherein
the buildings have been construted for allotment of the premises to the
mill workers and in the lotter system held on 13.09.2012 the residential
accommodations alloted in favour of Mr.Mahadeo Nemane, Mr.Dattu
Bhakare, Rajeram Bhandari and Mrs.Neeta Naik and plaintiff has option
to choose any one premises out of them. Therefore, plaintiff paid
Rs.One Lakh in cash to defendant as toke amount and toward
acknowledgment of the said amount defendant issued receipt bearing
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NO.615 dt.16.06.2015 of Rs.One Lkah. Thereafter, defendant entered
into Memorandum of Understanding dt.20.10.2015 with plaintiff in
repect of Flat NO.1006, admeasuring 225 square feet, Building
NO.1/F, new Hind Mill Mhada Colony, Ferbunder, Ghodapadev,
Mumbai33 (hereinafter referred to as “suit premises). The said MOU is
duly notarized. Plaintiff was told that, he will get the said premises for
total consideration of Rs.22,00,000/. As defendant has given Rs.One
Lakh as advance, after execution of MOU on 20.10.2015 plaintiff paid
Rs.21,00,000/ in cash to defendant.
4. Plaintiff submitted that, in the month of December defendant
informed plaintiff that he is unable to give the said premises as agreed
and will give another premises i.e Flat NO.2204, in building NO.1/B for
the same consideration of Rs.22,00,000/. Thereafter, on several
occasion plaintiff approached defendant and requested defendant to
complete the sale and hand over the possession of the premises.
However, on every occasion defendant has given false promises to
plaintiff. Therefore, in the month of August,2016 plaintiff met
defendant and demanded Rs.22,00,000/. But defendant failed and
neglected to pay the said amount to plaintiff. Therefore, application
dt.29.08.2016 plaintiff lodged complaint with Kalachowki Police
Station and Deputy Commissioner of Police (ZoneIV) about cheating
against defendant. Thereafter, defendant promised plaintiff to pay
Rs.22,00,000/ by selling his landed property at his native place at
village Mhasvad, Taluka Man, District Satara and he handed over the
papers of property to plaintiff. Accordingly, defendant executed
Compromise Deed dt.09.11.2016 with plaintiff which was duly
notarized.
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5. Plaintiff submitted that, thereafter she learnt that, defendant has
also cheated one person namely Satish Chouhan in the locality in
similar manner. In pursuant to the complaint lodged by plaintiff with
Kalachowki police station against defendant, the case bearing
NO.209/PW/2017 has been registered against defendant and it is
pending. As there is no sign of recovery of amount from defendant,
plaintiff approached this Court by filing tendering this suit against
defendant for recovery of amount.
6. Writ of summons came to be issued against defendant. It came
to be served. In spite of service none appeared on behalf of defendant.
Therefore, suit proceeded exparte against defendant.
Ex.07.
Ex.08.
Ex.09.
Ex.10.
Ex.11.
Ex.12.
Ex.13.
Ex.14.
Ex.15.
Ex.16.
D.sr.no.1, Certified copy of the said receipt dt.
16/06/2015, issued by 15th Metropolitan
Magistrate's court, Mazgaon at sewree, Mumbai.
D.sr.no.2, Certified copy of the said MOU dt.
20/10/2015 issued by by 15th Metropolitan
Magistrate's court, Mazgaon at sewree, Mumbai.
D.sr.no.3, certified copy of the said receipt
dt.16/12/2015 Issued by the 15th Metropolitan
Magistrate's court, Mazgaon at sewree, Mumbai.
D.sr.no.4, office copy of the said compliant dt.
29/08/2016.
D.sr.no.5, office copy of the said compliant dt.
01/12/2016.
D.sr.no.6, original deed of compromise dt.
09/11/2016.
D.sr.no.7, statement dt. 01/09/2016.
D.sr.no.8, photo copy of the report dt.
01/09/2016 of Kalachowki Police station.
D.sr.no.9, Certified copy of the said charge sheet
issued by the 15th Metropolitan Magistrate's
court, Mazgaon at sewree, Mumbai.
D.sr.no.10, particulars of claim.
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7. Heard learned Advocate for plaintiff. Perused the record and
submissions.
8. On perusal of Memorandum of Understanding dt.20.10.2015
executed between plaintiff and defendant, was agreed to sell the suit
premises and accordingly plaintiff performed their part by paying
advance Rs.1,00,000/ and later on balance consideration
Rs.21,00,000/. Defendant has issued receipt acknowledging the
payment of Rs.1,00,000/. Therefore, the transaction between the
plaintiff and defendant is proved. 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.22,00,000/ to
plaintiff. Therefore, it is clearly appear that, defendant has not fulfilled
his part as per MOU. Even plaintiff has lodged criminal complaint
against defendant about cheating with Kalachowky police station. 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 plaintiff. But neither defendant
handover the possession of flat nor returned the consideration of flat
received from plaintiff. Therefore, I have no hesitation to accept the
claim of plaintiff.
9. The evidence of plaintiff and documents produced and proved by
them, 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,
plaintiff is entitled to recover amount from defendants along with
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interest 18% 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.
10. 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.22,00,000/ along with interest
@ 18 percent per annum on principal amount of
Rs.22,00,000/ to plaintiff from the date of filing of this
suit till realization of entire decreetal amount.
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.: 03/12/2018 City Civil Court, Gr. Mumbai
Dictated on : 03.12.2018
Transcribed on : 06.12.2018
Signed on :
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.12.18 at 5.39 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 03.12.18
Judgment/order signed by P.O. on 06.12.18
Judgment/order uploaded on 06.12.18
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