Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Suit No.498/2018
MHCC010033232018 Presented on : 08/03/2018
Registered on : 17/04/2018
Decided on : 24/09/2024
Duration : 06Y 06M 18D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT-08
SUMMARY SUIT NO.498 OF 2018
(CNR – MHCC01-003323-2018)
Kiran Ambalal Patel,
residing at 501/502, Anmol Apart., 5th floor, 89
Sakharam Kher Marg, Mahim, Mumbai – 400 016.
]
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] ..Plaintiff
V/s.
1.
2.
3.
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.
Mr. Prakash Sharad Joshi,
Partner of M/s. Richa Realtors having address at
2/8 Parle Pushpa Co-op. HSG. Soc., Mahant
Road, Vile Parle (E), Mumbai – 400 057.
Mr. Anil Baburao Thote,
Partner M/s. Richa Realtors having address at
21, Mangalaya, Balgovindas Road, Mahim,
Mumbai – 400 016.
]
]
]
]
]
]
]
]
]
]
]
]
]
] ..Defendants
Appearance :-
Learned Advocate Manish Jagani for plaintiff.
None for defendants.
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..2.. Summary Suit No.498/2018
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 24/09/2024.
J U D G M E N T
1 The instant summary suit is filed by the plaintiff for grant
of decree of recovery of amount of Rs.78,75,000/- alongwith interest at
the rate of 12% per annum on the principal sum of Rs.63,00,000/-. The
plaintiff has come with the case that he has advanced a temporary loan
to the defendants. The defendant No.1 is a firm, defendant Nos.2 and 3
are its partners. The plaintiff has advanced temporary loan of
Rs.12,00,000/- on 01/12/2012, Rs.17,00,000/- on 26/03/2013 and
Rs.34,00,000/- on 13/08/2013. Thus, a total of Rs.63,00,000/- was
advanced as temporary loan to the defendants, who agreed to repay the
same together with interest at the rate of 12% per annum on demand. It
is further contended that the defendants have tendered three cheques,
to the plaintiff. The defendants also executed three promissory notes of
said amount in favour of plaintiff. The defendant have paid interest on
the loan regularly, till 31/12/2015, but thereafter, they failed to pay the
interest, therefore, the plaintiff found that his confidence in the
defendant has been shaken. He called upon them to repay the amount
of loan of Rs.63,00,000/- and informed defendant Nos.2 and 3 that he
would deposit the cheques in the bank for presentation. The cheques
were dishonoured, therefore, he issued notice to the defendants to pay
the amount, but in vain. Inconsequence of failure on the part of
defendants to repay the amount of loan with interest, he was
constrained to filed the suit for recovery of amount.
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..3.. Summary Suit No.498/2018
2 In response to the writ of summons, the defendants
tendered their appearances, thereafter, plaintiff took out summons for
judgment No.350 of 2018. The defendants resisted the summons for
judgment by filing reply. It is their contention that the plaintiff is a
money lender, hence, the transaction in question is hit by the provision
of Money Lending Act. It is further contended that the plaintiff is having
his 95% income from the interest and he has no valid license under the
provisions of Money Lending Act, therefore, the suit is liable to be
dismissed. It is further contended that the summary suit cannot be filed
as the plaintiff has not made any demand. The plaintiff has misused the
cheques tendered by the defendants, therefore, the suit cannot be filed
as prayed for. They prayed for unconditional leave to defend.
3 Upon hearing both the parties on summons for judgment
No.350 of 2018, this Court granted conditional leave to the defendants
upon depositing arrears of interest at the rate of 12% per annum, as
agreed on the loan amount of Rs.63,00,000/- from the date of default
i.e 31/12/2015 till 30/06/2023, within 30 days from the date of this
order i.e. 14/07/2023. However, the defendants till date failed to
deposit the same, therefore, plaintiff has submitted non-deposit
certificate (Exhibit-05). Hence, suit was proceeded further.
4 The plaintiff tendered affidavit of claim (Exhibit-07) and
various documents under list (Exhibit-06). Heard learned advocate for
plaintiff. There is nothing on record placed by the defendants to show
that they have complied the order of this Court. Therefore, in absence
of compliance of conditional order of deposit of amount for leave to
defend, the suit was required to be proceeded further without defence
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..4.. Summary Suit No.498/2018
as per the provisions of clause 3(6)(b) of Order XXXVII of Code of Civil
Procedure, hence, suit deserves to be decreed forthwith.
5 I am fortified by the judgment passed by the Hon'ble High
Court in the case of K. R. Patel (HUF), Mumbai Vs. M. M. Developers,
Mumbai and others reported in 2015(3) Mh.L.J. 260. The Hon'ble High
Court has opined in paragraph No.7 -
“in my view the course of action that is proposed to be
followed by the Trial Court can be said to be in
contravention of the mandate of Order XXXVII Rule (3)
(6)(b) of the Civil Procedure Code. A reading of the said
provision makes it clear that on failure of the Defendant
to comply with the condition imposed by the Court, the
Plaintiff is entitled to judgment forthwith. The said
provision was the subject matter of the judgment of a
Division Bench of this Court in M/s. D. Shanalal's case
(supra), where the Division Bench has observed that
when the Defendant fails to comply with a conditional
order passed under Order XXXVII, the Defendant is
precluded from further contesting the plaintiff's claim
and that the facts stated in the plaint must be considered
to have been admitted by the Defendant and the
Plaintiff becomes entitled to judgment. The Division
Bench has further observed that Order XXXVII not only
provides for abridgment of the procedure of suits
covered by the said provisions but also the said
provisions restrict and/or curtail the rights of the
Defendants in these suits to contest the Plaintiff's claim.”
6 In view of the observation in the cited case, it is not
possible to abstain from proceeding with the matter. There is no scope
of any further inquiry and the plaintiff would be entitled for the
judgment forthwith, due to the default committed by defendant in
obeying conditional order passed in summons for judgment. The
omission to comply the order of summons for judgment would
definitely amount that the claim in the plaint is accepted to the
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..5.. Summary Suit No.498/2018
defendant and the Court has to proceed to pass judgment in terms of
the law which has been enunciated in the cited case K. R. Patel Supra.
7 On perusal of documents under list (Exhibit-06), it reveals
that plaintiff has filed certified copies of original documents which are
filed before the Learned Metropolitan Magistrate, Dadar, Mumbai.
Thus, there is no reason to disbelieve the contentions of plaintiff, which
remain unchallenged.
8 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 12% per annum from the defendant, but, to me, it
appears to be exorbitant. No doubt the plaintiff has suffered loss in
business and profit, due to failure to repay the amount by the
defendant. Had it been paid to the plaintiff as per demand, it would
have invested and would have earned profit therefrom. Therefore, I am
of the view that the plaintiff is entitled for interest at the rate of 9% per
annum from the date of default i.e. 01/01/2016, till its full realisation.
9 As the plaintiff was constrained to file the suit for recovery
of loan amount, therefore, defendants are liable to pay the costs of suit.
In the result, I proceed to pass the following order :-
ORDER
1. Summary Suit No.498 of 2018, is hereby partly
decreed with costs.
2. Plaintiff do recover an amount of Rs.63,00,000/- from
the defendants alongwith interest at the rate of 9%
per annum from the date of default i.e. 01/01/2016,
till the recovery of entire amount.
3. Court fees, if any, be refunded as per rule.
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..6.. Summary Suit No.498/2018
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 24/09/2024 C.R. No.84
Dictated and Typed on : 24/09/2024.
Draft corrected on : 25/09/2024.
Signed on : 26/09/2024.
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..7.. Summary Suit No.498/2018
“Certified to be true and correct copy of the original signed order”.
26/09/2024
at about 4.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 24/09/2024
Order signed by Hon'ble Judge on : 26/09/2024
Order uploaded on : 26/09/2024
at about 4.15 p.m.
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