Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010033212018 Presented on 08/03/2018
Registered on 17/04/2018
Decided on 05/03/2025
Duration 06Y: 11M: 28D
Exhibit 6
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO.499 OF 2018
Prerna Patel, ]
age 55 years, through her ]
Constituted Attorney ]
Kiran Ambalal Patel, residing at ]
501/502, Anmol Apart., 5th floor, ]
89 Sakharam Kher Marg, ]
Mahim, Mumbai-400 016. ]...Plaintiff
V/s.
1. M/s. Richa Realtors, ]
a Partnership Firm having ]
Office at 101, Kshitij Building, ]
Sena Bhavan Path, Dadar (W), ]
Mumbai-400 028.
Also having address at 1st Floor, ]
J. V. House, D. S .Babrekar Marg, ]
Dadar (W), Mumbai-400 028. ]
2. Mr. Prakash Sharad Joshi, ]
Adult, Partner of M/s. Richa Realtor, ]
having address at 2/8 Parle ]
Pushpa Co-op. HSG. Soc., ]
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Mahant Road, Vile Parle (E), ]
Mumbai 400 057. ]
3. Mr. Anil Baburao Thote, ]
Adult, Partner of M/s. Richa Realtor, ]
having address at 21, Mangalaya, ]
Balgovindas Road, Mahim ]
Mumbai 400 016. ]...Defendants
Appearance:-
Ld. Advocate Mr. Manish Jagani for the plaintiff.
Defendants absent (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 05/03/2025.
ORDER
( Dictated and pronounced in open Court)
01] This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (C.P.C.) for recovery of amount of
Rs. 21,25,000/- including interest and prayed for further interest.
Brief facts of the plaintiff's case is as under :-
02] As per the plaintiff, she is individual. Further, defendant
No. 1 is a partnership firm carrying business under the name and style
of M/s. Richa Realtors and doing business of constructions being
builder and developer. Defendants No. 2 and 3 are partners of it.
Plaintiff advanced loan of Rs. 17,00,000/- vide cheque of Standard
Chartered Bank, Shivaji Mandir, Dadar Branch, Mumbai to the
defendants at the rate of 12% p.a. and defendants had agreed to repay
the same. Defendants No. 2 and 3 for self as well as partners as well
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as on behalf of defendant No. 1 have executed demand promissory
note dated 26/03/2013 for sum of Rs. 17,00,000/-. Further, on the
same date, they issued undated cheque bearing No. 079887 for
Rs. 17,00,000/- drawn on HDFC Bank, Dadar T.T. Branch for
repayment of said temporary loan in favour of the plaintiff. The
defendants paid interest upto 31/12/2015 however, thereafter
defendants have not paid the interest. Thereafter, on several requests
defendant No. 3 for himself and for and on behalf of defendants No. 1
and 2 had issued cheque bearing No. 311156, drawn on Axis Bank Ltd,
Worli, Mumbai Branch for Rs. 46,410/- towards interest on the said
loan amount for the period 01/01/2016 to 31/03/2016 in the month
of February 2016. Plaintiff attempted to deposit cheque for
Rs. 17,00,000/- as per instructions of defendants on 05/07/2016.
However, it was realized that there was discrepancy in the figure of the
said cheque and amount written in the words. Therefore, plaintiff
informed to the defendants and they issued fresh cheque bearing
No. 918991 dated 06/07/2016 for Rs. 17,00,000/- in favour of
plaintiff. Further, the plaintiff deposited cheque for Rs. 46,410/- and
Rs. 17,00,000/- on 06/07/2016 with his bank it were dishonored vide
memo dated 08/07/2016 and dated 06/07/2016 for reason 'payment
stopped by drawer'. Therefore, plaintiff issued notice to the defendant
on 09/07/2016 and informed him about dishonored of said cheque
and called upon him to repay outstanding amount of loan and interest.
The defendants received notice on 11/07/2016 however, they failed to
reply the said notice and repay Rs. 21,25,000/- along with interest.
Therefore, plaintiff has filed the present suit against the defendants for
recovery of principal amount with further interest.
03] After appearance of defendants, plaintiff has taken out
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Summons for Judgment No.349/2018. The said Summons for
Judgment came to be decided on 19/03/2024 and conditional leave
was granted to defend the suit with direction to deposit an amount of
Rs. 17,00,000/- within 30 days from the date of order. Defendants
have failed to comply the said order. The plaintiff has filed Non
Deposit Certificate vide Exh. 4 on record.
04] The plaintiff to prove his contention has filed certified
copies of original documents on record vide list Exh. 3.
Sr.
No. Exhibit Particulars
1 Exh.3/1 Index of M. M. Court in case No.1054 of 2016 dated
08/02/2024
2 Exh.3/2 Original POA dated 02/02/2013
3 Exh.3/3 Original demand promissory note dated 26/03/2013
4 Exh.3/4 Cheque No.918991 dated 06/07/2016
5 Exh.3/5 Cheque Return Memo in respect of Cheque
No.918991 dated 08/07/2016
6 Exh.3/6 Notice dated 09/07/2016
7 Exh.3/7 Three original Postal Acknowledgment cards dated
11/07/2016
8 Exh.3/8 Three original Postal Acknowledgment cards dated
11/07/2016
9 Exh.3/9 Three original Postal Acknowledgment cards dated
11/07/2016
10 Exh.3/10 Three original Postal Acknowledgment cards dated
11/07/2016
05. Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
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which my findings are recorded for reasons given below.
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs. 17,00,000/-
from defendants ? If yes, at what
rate of interest?
Yes, the plaintiff is entitled to
simple interest on the amount of
Rs. 17,00,000/- at the rate of
7% p.a. from 08/03/2018 i.e.
the date of filing the suit till its
full realization.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 and 2:-
06] Perused plaint and record. Heard Ld. counsel for the
plaintiff. Counsel for defendant failed to argue. Admittedly, Summons
for Judgment No.349/2018 was decided on 19/03/2024 and
conditional leave was granted to the defendants to deposit an amount
of Rs. 17,00,000/- within 30 days from the date of order. It appears
from record that defendants have failed to deposit the said amount, as
it is evident Non-Deposit Certificate filed vide Exh. 4. Therefore, as per
Order 37, Rule 6(b) of C.P.C., plaintiff is entitled for the judgment.
07] As per plaintiff, she had advanced an amount of
Rs. 17,00,000/- to defendants. Defendants No. 2 and 3 have executed
demand promissory note dated 26/03/2013 filed on record vide List
Exh. 3/3. Though, defendants have raised objection in their reply to
the Summons for Judgment however, they failed to comply the order
on Summons for Judgment No. 349/2018. On perusing said demand
promissory note, it appears that defendants No.2 and 3 have promised
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to pay jointly and severally an amount of Rs. 17,00,000/- with interest
at the rate of 12% p.a. This fact is not disputed by the defendants.
08] Further, plaintiff has contended that to discharge the said
liability defendants had issued cheque dated 26/03/2013 bearing
No. 079887 for sum of Rs. 17,00,000/- drawn on HDFC Bank Limited,
Dadar, TT Branch. It is further contention of plaintiff that defendants
have paid interest on the said amount by cheques till 31/12/2015. It
is pertinent to note that plaintiff has not filed these documents on
record to support his contentions.
09] It is further contention of plaintiff that in the last week of
February, 2016 defendants had issued one undated cheque bearing
No.311156 for sum of Rs. 46,410/- towards interest on the loan
amount however, defendants assured not to deposit said cheque and
they will repay the amount in the first week of February, 2016. The
defendants failed to repay the said amount. Further, there were some
discrepancies in the amount mentioned in figure and word in the said
cheque. Therefore, defendants No. 2 and 3 had issued another cheque
of Rs. 17,00,000/- on 06/07/2016 bearing No. 918991. As per the
plaintiff when said cheque was deposited in the bank, it was become
dishonoured on 08/07/2016 and 06/07/2016 respectively. Thus,
plaintiff has proved that defendants had borrowed an amount of
Rs. 17,00,000/- from plaintiff and failed to repay the said amount. As
discussed above, defendants failed to comply the Summons for
Judgment order No. 349/2019 dated 19/03/2024. Thus, plaintiff is
entitled for an amount of Rs. 21,25,000/- including interest from
defendants.
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10] So far as further rate of interest is concerned, plaintiff as
claimed interest at the rate of 12% p.a. However, I am of the view that
said rate of interest is excessive in nature as compared to rate of
interest of Nationalized Bank. Therefore, in view of Section 34 of
C.P.C., it would be just and proper to grant interest at the rate of 7%
p.a. on the principal amount of Rs. 17,00,000/- from 08/03/2018 i.e.
the date of filing the suit till its full realization. Therefore, in absence
of contrary evidence as well as non compliance of order on summons
for judgment, plaintiff is entitled for judgment as per Order 37, Rule
3(6)(b) of C.P.C. Hence, I answer point No. 1 in the affirmative. In
the result, I answer to point No. 2, I proceed to pass the following
order.
O R D E R
1] The Summary Suit No. 499 of 2018 is decreed with costs.
2] The defendants shall jointly and severally pay to the plaintiff an
amount of Rs. 21,25,000/- (Rupees Twenty Lakhs Twenty Five
Thousand only).
3] The plaintiff is entitled to simple interest on the amount of
Rs. 17,00,000/- at the rate of 7% p.a. from 08/03/2018 i.e. the
date of filing the suit till its full realization.
4] The plaintiff may be entitled to get refund of the court-fees paid
by them, if any provided for in rules.
5] The decree shall be drawn accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
Date: 05/03/2025 C.R.No.81
Dictated on: 05/03/2025
Corrected & signed on: 06/03/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
06/03/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 05/03/2025
JUDGMENT/ORDER signed by P. O. on 06/03/2025
JUDGMENT/ORDER uploaded on 06/03/2025
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