Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010031252020
Presented on 11-03-2020
Registered on 14-03-2020
Decided on 26-08-2024
Duration Year Month Days
04 05 15
CNR No. MHCC010031252020
EXH.17
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMARY SUIT NO.285 OF 2020
MR. SANJAY MARUTI THOMBARE
Adult, age about 38 years
Occ: Business,
Residing at Room No.__
Ashirwad Society Chawl,
Near Shivneri Compound,
Bhandup (West),
Mumbai – 400 078. ...Plaintiff.
V/s.
1. MR. SATYANARAYAN DHARAMRAJ KAMBLE
Adult, age about 32 years
Occ: -
2. MR. DHARAMRAJ TATYABA KAMBLE
Adult, age about 58 years
Occ: --
3. MRS. SUMAN @ KAMLABAI DHARAMRAJ
KAMBLE
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Adult, age about 56 years
Occ: --
All 1 to 3 residing at Flat No.37,
Saideep Co-op Hsg. Soc. Ltd.,
Sector – 21, Kharghar,
Navi Mumbai – 410210.
...Defendants.
Appearance :
Adv. Rajiv Singh : for Plaintiff
None : for Defendant
HIS HONOUR JUDGE
N. B. LAVTE
(C.R.No.83)
26th August, 2024
J U D G M E N T
(Ex-parte)
(Suit under Order XXXVII of C.P.C.)
This is a suit under Order 37 of the Code of Civil Procedure
for recovery of an amount of Rs.03,11,000/- alongwith interest @ 9%
p.a.
2. The brief facts of the plaintiff’s case is that:
In the month of June, 2018, plaintiff’s cousin brother
Shivaji Thombare informed that defendants are selling shop premises
i.e. Chapal stall No.34, admeasuring 4 x 6 sq.ft, at Chitranjan Das Road,
Dombivali (East), Thane – 421201. Plaintiff met defendants and they
showed the shop, MSEB bill and copy of shop Act License which was in
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the name of defendant No.1. The plaintiff alongwith his brother
Gajanan met defendants at Kharghar, Navi Mumbai wherein they were
again shown original documents and offered to sell the shop for an
amount of Rs.6,11,000/-. Defendants came to Bhandup (West),
Mumbai, to complete the deal. An amount of Rs.11,000/- was given as
token in cash and three cheques bearing cheque Nos.110964 dated
06.07.2018, 110965 dated 20.07.2018 and 110966 dated 13.07.2018 of
Rs.1,00,000/- each drawn on Hindustan Co-op Bank Ltd, Bhandup
Branch. The balance amount of Rs.3,00,000/- was to be given at the
time of execution of Sale Deed.
3. It is further case of the plaintiff that the cheques were duly
encashed in the bank account of defendant No.2. In the month of
October, 2018 plaintiff’s uncle visited Kalyan Dombivali Muncipal
Corporation (KDMC) to enquire about the status of the shop and came
to know it was in the name of Ashok BahiruKapure and it cannot be
transferred unless prior approval / consent of KDMC. Plaintiff realized
that defendants by misleading and by preparing forged documents
cheated him and hence he cancelled the deal and asked for retund of
amount. Defendants sought time, however, failed to repay the amount.
Hence, he filed complaint in Bhandup Police Station. Defendants made
statement before police that they will refund the amount before
31.06.2019 which they failed. Again plaintiff filed complaint in
Bhandup Police Station in the month of July, 2019 wherein C.R.
363/2019 was registered and defendant No.1 was arrested wherein
defendant No.2 and 3 got anticipatory bail.
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4. It is plaintiff’s further case that defendant No.1 by forging
documents secured bail from Metropolitan Magistrate Court, Mulund.
On 10.02.2020, he issued demand notice, however, inspite of receipt of
the same they failed to make the payment hence filed suit for recovery
of an amount of Rs.3,11,000/- with interest @ 9% interest p.a.
5. The record reveals that pursuant to the suit summons,
defendants appeared and defendant No.3 moved an application for
leave to defend, whereas plaintiff moved Summons for Judgment No.14
of 2022. Vide an order dated 07.12.2022, conditional leave to defend
suit was granted subject to defendants depositing an amount of
Rs.3,00,000/- within two months. Record reveals defendants failed to
deposit the amount, hence, by order dated 11.04.2023 it was directed
that the suit to proceed further.
6. From the pleading of plaintiff, following points arise for my
consideration and determination to which I have given my findings
alongwith reasons as under:
Sr. Points Findings
1. Whether plaintiff is entitled for recovery of an
amount of Rs.3,11,000/- with 9% interest p.a. ?
affirmative
.
2. What order and decree ? As per final
order.
REASONS
7. In order to substantiate claim, the plaintiff filed his
evidence affidavit vide (Exh.5) and also placed reliance on the
following list of documents namely electricity bill (Exh.7), copy of letter
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(Exh.8), letter of KDMC (Exh.9), copy of police complaint (Exh.10),
Certified copy of FIR (Exh.11), copy of police complaint (Exh.12), copy
of Notice (Exh.13), postal receipts (Exh.14), two acknowledgment cards
(Exh.15) and postal tracking reports (Exh.16).
AS TO POINT NO.1.
8. Heard Adv. Rajiv Singh for plaintiff and gone through the
documents filed on record. Perusal of the plaint as well as evidence
affidavit alongwith documents filed on record reveals that plaintiff
agreed to purchase the shop and parted in all Rs.3,11,000/- of which
Rs.3,00,000/- were paid by cheques and Rs.11,000/- in cash. The
cheques were encashed in the account of defendant No.2, however, the
plaintiff later on came to know that the documents of the shops were
forged hence he lodged FIR against all the defendants. The record
further reveals that defendant No.1 was arrested whereas defendant
Nos.2 and 3 secured anticipatory bail. The plaintiff in his evidence
affidavit reiterated the contents of the plaint. Though defendants
appeared and filed an application for leave to defend however, they
failed to obey the conditional order dated 07.12.2022. As such the
contents of the plaint, evidence affidavit and the umpteen documents
filed on record has gone unchallenged. Even otherwise as per the Order
37 Rule 6 (b) of the Code of Civil Procedure which reads as under:
“if the defendant is permitted to defend as to the whole or
any part of the claim, the Court or Judge may direct him to
give such security and within such time as may be fixed by
the Court or Judge and that, on failure to give such security
within the time specified by the Court or Judge or to carry out
such other directions as may have been given by the Court or
Judge, the plaintiff shall be entitled to judgment forthwith”.
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9. Thus perusal of the plaint, unchallenged evidence of
plaintiff and provisions of Order 37 Rule 6(b) of the CPC is taken into
consideration, plaintiff is entitiled to recover an amount of
Rs.3,11,000/- from the defendants alongwith interest @ 9% p.a.
Hence, Point No.1 is answered accordingly.
AS TO POINT NO.2:
10. In view of my finding to Point No.1, the suit is liable to be
decreed with costs and plaintiff is entitled to recover an amount of
Rs.3,11,000/- with 9% p.a. In the result, I proceed to pass following
order.
ORDER
1. The Summary Suit No.285 of 2020 is decreed with costs.
2. The defendant are hereby directed to pay the plaintiff an amount of
Rs.3,11,000/- (Rupees Three Lakh Eleven Thousand only) with 9%
p.a. from the date of filing of the suit till its realization.
3. The decree be drawn up accordingly.
4. R and P be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:26-08-2024 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 26-08-2024
Transcribed on : 29-08-2024
checked on : 02-09-2024
Signed on : 02-09-2024
(N. B. Lavte)
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.09.2024 at 02.10 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri. N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
26.08.2024
Judgment/order signed by P.O. on 02.09.2024
Judgment/order uploaded on
due to non working of cis
02.09.2024
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