Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S. C. Suit No. 1064/19. 1 Ex-parte Judgment (Exh.7).
MHCC010033172019
Presented on : 22-03-2019
Registered on : 15-04-2019
Decided on : 02-05-2024
Duration : 5 years, 1 months, 11 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S. C. SUIT NO. 1064 OF 2019
EXHIBIT NO.7.
Dr. Anantkumar L. Gore, )
Indian aged 58 years, )
Occupation: Advocate High Court, )
Having office at 6D, 3rd Floor, Sailors Bldg., )
373, Dr. D.N. Road, Flora Fountain, )
Mumbai – 400 001 ) ...Plaintiff
Versus
Shri Jayantilal P Desai, )
Age: Not Known, Indian Inhabitant, retired )
C/301, Soni Park, Chikoowadi, )
Borivali (West), Mumbai 400 092 )...Defendant
Smt. Manisha Jadhav h/f Shri Ajay Kumar Mistri, Advocate for the
plaintiff.
None for the defendant. (Ex-parte).
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 2nd MAY, 2024.
JUDGMENT
(Delivered on 2nd May, 2024.)
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S. C. Suit No. 1064/19. 2 Ex-parte Judgment (Exh.7).
1. This is suit for recovery of an amount of Rs.35,000/- with
interest at the rate of 12% p.a. from 30/06/2009.
2. The plaintiff contends that he is a practicing advocate in
Bombay High Court. The defendant availed his service as advocate and
appointed him to represent the defendant before Honourable High
Court, Bombay to file writ petition. Accordingly the plaintiff filed Writ
Petition No. 944/2009 which was disposed off vide order dated
20/03/2009. The writ petition was withdrawn at the request of the
defendant. It is specific case of the plaintiff that after withdrawal of the
writ petition the defendant visited his office on 01/04/2009 and agreed
to pay Rs.50,000/- as professional fees for the service rendered by the
plaintiff. He paid Rs.15,000/- in advance. The defendant again visited
the office of the plaintiff and assured to pay balance amount of
Rs.35,000/- within a month and requested the plaintiff to return the
papers and proceeding of the writ petition which was returned by the
plaintiff.
3. The plaintiff further contends that the defendant did not
pay amount agreed and filed complaint before the Additional Mumbai
Suburban District Consumer Disputes Redressal Forum, Bandra vide
RBT Complaint Case No. 452/2011 dated 12/10/2011 on account of
deficiency in service. It was ultimately disposed off and dismissed on
06/11/2018. Thereafter the plaintiff issued notice to the defendant on
24/12/2018 to pay balance amount of the fees with interest, but in
vain. Hence this suit.
4. Initially the defendant appeared in person. Thereafter the
plaintiff was directed to file affidavit of service which was filed on
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S. C. Suit No. 1064/19. 3 Ex-parte Judgment (Exh.7).
record at Exh.2. Consequently suit is proceeded ex-parte against the
defendant. Thereafter the plaintiff examined himself as PW No.1 at
Exh.3 and filed documents alongwith list Exh.4 as follows :
Sr.No. Particulars Date
1 A copy of order passed by the Hon’ble High
Court in WP No. 944/09.
20/03/09
2 A copy of the memo of Fees sent to the
Defendant.
30/06/09
3 A copy of the Judgment and Order passed by
the Consumer Disputes Redressal Forum in
RBT/CC/452/2011.
06/11/18
4 A copy of letter/notice for payment of balance
fees.
24/12/18
5 A copy of the notice received from Consumer
Forum.
14/01/19
6 A copy of the order passed by the Suburban
District Forum in Misc. Application No. 2/2019.
26/02/20
5. The plaintiff closed his evidence vide pursis Exh.5.
6. Learned advocate for the plaintiff argued in support of the
case of the plaintiff.
7. Considering facts, evidence and submission of learned
advocate for the plaintiff, following points arise for determination of the
suit :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover an amount of
Rs.35,000/- with interest at the rate of
12% p.a. ?
Partly Yes.
2. Is suit within limitation ? Yes.
3. What order and decree ? As per final order.
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S. C. Suit No. 1064/19. 4 Ex-parte Judgment (Exh.7).
REASONS
AS TO POINTS NO.1 TO 3 :-
8. At the outset, it is apt to mention that pleadings and
evidence of the plaintiff remained unchallenged. Hence, there is no
reason to discard it at threshold.
9. The plaintiff has filed the copy of Writ Petition No.
944/2009 and copy of order passed by Consumer Disputes Redressal
Forum in RBT/CC/452/2011 on record. Both these documents show
that the plaintiff acted as an advocate of the defendant before the
Honourable High Court but defendant initiated action against plaintiff
before the Consumer Forum in which he failed. The oral evidence of the
plaintiff remained unchallenged. Therefore there is no reason to discard
the same. The defendant has agreed to pay Rs.50,000/- as professional
fees to the plaintiff and paid Rs.15,000/-. Thus balance amount is
Rs.35,000/-.
10. The defendant ought to have pay said amount on or before
30/06/2009. The plaintiff ought to have taken action within three years
of 30/06/2009. The suit is instituted on 22/03/2019. It is submission of
the plaintiff that defendant had initiated action before he instituted suit.
The Consumer forum has disposed off the complaint on 06/11/2018.
Considering the date of decision of the Consumer Forum and date of the
suit it can be said that the plaintiff has sufficient cause to initiate action
to recover the amount after date of decision of Consumer Forum. Hence
suit is within limitation.
11. The plaintiff claims interest at the rate of 12% p.a. from
30/06/2009. However, considering the nature of transaction between
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S. C. Suit No. 1064/19. 5 Ex-parte Judgment (Exh.7).
the plaintiff and the defendant, it would be just and proper to award
interest at the rate of 6% p.a. from 30/06/2009 to the date of its
realization. Accordingly point no.1 and 2 are answered.
12. Defendant failed to resist the suit. His failure to pay the
balance amount of fees led the plaintiff to institute the suit. Hence, the
plaintiff would entitle to the cost of the suit. Accordingly in answer to
point no.3 following order is passed :
- ORDER -
1. The suit of the plaintiff is partly decreed with cost as under :
The defendant is ordered to pay Rs.35,000/- with interest
at the rate of 6% p.a. from 30/06/2009 till the date of its realization
within two months from the date of the order to the plaintiff.
2. Accordingly S.C.Suit No. 1064/2019 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 02/05/2024. Mumbai.
1. Dictated on : 02/05/2024.
2. Transcribed on : 09/05/2024.
3. Checked on : 09/05/2024.
4. Correction carried on : 10/05/2024.
5. Signed on : 10/05/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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S. C. Suit No. 1064/19. 6 Ex-parte Judgment (Exh.7).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/05/2024. 5.15 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 02/05/2024.
Judgment/Order signed by P.O. on 10/05/2024.
Judgment/Order uploaded on 10/05/2024.
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