Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010033712020 Presented on 18/03/2020
Registered on 06/01/2021
Decided on 13/12/2024
Duration 03Y: 10M : 26D
Exhibit 15
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 22 OF 2021
Manoj Manilal Gala, ]
Age 52 years, Occupation: Business, ]
for himself and also as the executor and ]
Trustee under the last Will and Testament ]
dated 26.04.2011 of father, Late Mr. Manilal ]
Premji Gala of Mumbai, Indian Inhabitant ]
residing at 1-A, Mohan’s House, ]
Opp. Breach Candy, Bhulabhai Desai ]
Road, Mumbai-400026. ]...Plaintiff
Versus
Hiten H. Gala, ]
Age non known, occupation: Business, ]
of Mumbai, Indian Inhabitant having office at ]
Unit No.20, Shilpin Centre, Ground Floor ]
43 G.D. Ambekar Road, ]
Near Wadala Telephone Exchange ]
Wadala, Mumbai-400031. ]...Defendant
Appearance:-
Ld. Advocate Niranjan Parekh with Adv Sayali Puri Nair i/b. Mansukhlal
Hiralal and Co. for the plaintiff.
Defendant absent (Ex-parte).
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2 SUM SU NO. 22/2021
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 13/02/2024
JUDGMENT
( Dictated and pronounced in open Court)
01. This is the suit filed under Rule 2 of Order XXXVII of Code of
Civil procedure, 1908 (CPC) for recovery of amount of
Rs. 36,23,750/- alongwith furture interest at the rate of 18% p.a. from the
defendant.
Brief facts of the plaintiff’s case may be summarized as under:-
02. The plaintiff is son of late Mr. Manilal Premji Gala, who
expired on 05/08/2015. The plaintiff has been appointed as executor and
trustee under will and testament dated 26/04/2011. The plaintiff is also
doing business of garments and merchandise on the address mentioned in the
cause title. The defendant is also businessman and resisting on the address
mentioned in cause title. The defendant approached to the deceased Manilal
Gala i.e. father of plaintiff and requested for friendly loan of Rs. 20,00,000/-.
Accordingly, on 20/03/2012 friendly loan of Rs. 20,00,000/- was advanced to
the defendant for business purpose by cheque drawn on Bank of India,
Breach Candy Mumbai on 02/03/2012. The defendant executed promissory
note on the same date for sum of Rs. 20,00,000/-. Again, on 21/10/2013
friendly loan of Rs. 5,00,000/- was given to the defendant by cheque drawn
on Bank of India, Breach Candy Mumbai on 21/10/2013. The defendant has
executed promissory note on the same date for sum of Rs. 5,00,000/-. Thus,
defendant has borrowed total loan of Rs. 25,00,000/- from the deceased
father of plaintiff. The defendant was paying and continued to pay interest
on the said amount. Defendant had paid interest of Rs. 1,52,500/- on
31/03/2017 and Rs. 2,28,750/- on 04/10/2017. However, thereafter plaintiff
failed to pay either principal amount or interest thereon. Therefore, notice
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3 SUM SU NO. 22/2021
dated 18/12/2019 was issued through advocate to the defendant and called
upon to pay an amount of Rs. 36,23,750/- (including interest and principal
amount). The defendant received said notice on 19/12/2019, however, failed
to repay the said amount. The defendant replied on 13/01/2020 to the said
notice and acknowledged their receipt of notice however, denied the liability.
It is the contention of the defendant that there is no privity of contract
between defendant and plaintiff. Further, the defendant had admitted
transaction however, took a defence that said transaction was conducted
through a financial broker Sharad Shethia and matter has been amicably
settled with him by Deed of Composition. The plaintiff again issued notice
on 27/01/2020 to the defendant and denied the contentions in reply of
defendant dated 13/01/2020. The plaintiff had arranged for inspection of
documents as per the request of defendant on 11/02/2020. Thus, plaintiff is
entitled for total amount of Rs. 36,23,750/- from the defendant along with
future rate of interest at the rate of 18% p.a. Hence, this suit.
03. Writ of summons was served to the defendant. He appeared
before the Court. The plaintiff had filed Summons for Judgment
No. 15/2021, to which defendant had filed reply and it came to be decided on
merits on 17/08/2022. The defendant was granted leave to defend subject to
payment of Rs. 12,50,000/-. It appears from roznama dated 01/03/2023 that
defendant failed to comply the said condition therefore, suit was ordered to
proceed ex-parte against the defendant.
04. In support of claim, the plaintiff filed affidavit of claim at
Exh. 6 and reiterated his contention for recovery of Rs.36,23,750/- along
with the further interest at the rate of 18% per annum. The plaintiff has filed
and relied upon the following documents.
Sr. No. Exhibit Particulars
1 Exh.9 Promissory Note for the sum of Rs. 20,00,000/-
2 Exh.10 Promissory Note for the sum of Rs. 5,00,000/-
3 Exh.11 Plaintiff’s advocate Notice calling upon defendant
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4 SUM SU NO. 22/2021
4 Exh.12 Reply letter from the advocate for the defendant
5 Exh.13 Copy of letter addressed by the advocates
6 Exh.14 Copy of letter addressed by the advocate for the
plaintiff
05. To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them for the
reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of
Rs. 36,23,750/- from defendant?
If yes, at what rate of interest?
Yes.
Entitled to interest @ 6% p.a on
Rs.25,00,000/- from 18/03/2020,
the date of filing of 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 & 2:
06. It is argued on behalf of the plaintiff that he has been appointed
as executor and trustee by his deceased father Manilal Gala. The defendant
has borrowed friendly loan of Rs. 25,00,000/- from his deceased father. The
defendant paid an amount of Rs. 1,52,500/- and Rs. 2,28,750/- towards
interest to the plaintiff. Further, defendant failed to pay principal amount and
interest therefore, he issued notice on 18/12/2019, to which defendant replied
on 13/01/2020 and denied the liability. Therefore, plaintiff again issued
notice on 27/01/2020 and denied the contents of the defendant. The
defendant has failed to repay the loan of the plaintiff. He has proved his
contention by oral and documentary evidence on record. The defendant has
not contested the evidence of the plaintiff therefore, it has remained
unchallenged. Hence, suit may be decreed with costs.
07. The plaintiff has filed claim affidavit at Exh. 6 and reiterated
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5 SUM SU NO. 22/2021
his contention in plaint. Plaintiff and defendant are businessmen. Plaintiff has
contended that defendant has borrowed friendly loan of Rs.20,00,000/- on
02/03/2012 and Rs.5,00,000/- on 21/10/2013. Further, defendant has
executed demand promissory note at Exh. 9 and 10 respectively. On perusing
said demand promissory notes, it appears that defendant had executed the
said demand promissory notes. Further, as per the contentions of the plaintiff
defendant had paid an amount of Rs.1,52,500 and Rs.2,28,750/- towards
interest. The last payment towards interest was on 31/03/2017. Further, as
defendant failed to pay principal amount of loan and interest thereon
therefore, issued notice dated 18/12/2019 at Exh. 11 which is received by the
defendant. The defendant has given reply at Exh. 12 to the said notice. On
perusing said reply, it appears that defendant has taken defence that there is
no privily of contract between the plaintiff and defendant and he has entered
into transaction through Broker Sharad Sethia and matter has been settled
between them. It is pertinent to note that defendant has not filed his written
statement and cross examined the plaintiff. Therefore, the defence of the
defendant that he had entered into transaction through Sharad Sethia and
matter is amicably settled cannot be considered. Further, defendant has not
denied that he has borrowed loan from the deceased father of the plaintiff.
Therefore, I am of the view that from oral and documentary evidence, the
plaintiff has proved that defendant had borrowed an total amount of
Rs. 25,00,000/- from his father. Further, defendant failed to repay the said
amount. Therefore, plaintiff is entitled to recover said amount alongwith
interest.
08. So far as prayer of interest on the said amount is concerned, the
plaintiff has claimed 18% p.a. interest on the said amount. The plaintiff has
calculated the amount of interest as Rs.11,23,750/- at the rate of 18% per
annum on Rs. 25,00,000/- from 01/10/2017 to 15/03/2020. Though, plaintiff
is claiming interest at the rate of 18% p.a. on the basis of promissory notes at
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6 SUM SU NO. 22/2021
Exh. 9 & 10, however, it is excessive rate of interest. Hence, I hold that the
plaintiff is entitled to interest amount of Rs. 11,23,750/- as prayed till date of
filing suit. Thus, the plaintiff is entitled to recover the total amount of
Rs. 36,23,750/- including principal and interest till date of filling of suit.
09. Even, I hold that the plaintiff is entitled to the further interest
on the said amount from the date of filing the suit till realization of amount.
The plaintiff has prayed for the further interest at the rate of 18% per annum.
However, I am of the view that the same is excessive as compared to rate of
interest of Nationalized Banks. Therefore, having regard to the provision of
section 34 of the Civil Procedure Code, I am of the view that granting the
interest at the rate of 6% per annum. on the principal amount would be just,
proper and reasonable. Hence, I hold that the plaintiff is entitled to further
interest at the rate of 6% per annum on the principal amount, from the date of
filing the suit till its full realization. Hence, I answer point No. 1
accordingly. In the result, in answer to point No. 2, I proceed to pass
following order.
O R D E R
1) Summary Suit No. 22 of 2021 is hereby decreed with the costs.
2) The defendant shall pay an amount of Rs. 36,23,750/- (Rupees Thirty
Six Lakhs Twenty Three Thousand Seven Hundred Fifty only) to the
plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Rs. 25,00,000/- at the rate of 6% per annum from 18/03/2020, the
date of filing of suit till its full realization.
4) The plaintiff may be entitled to get refund the court-fees paid, if
provided for in Rules.
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7 SUM SU NO. 22/2021
5) The decree be drawn up accordingly.
(Sangram S.Shinde)
Adhoc Judge, City Civil Court Gr. Mumbai
Date: 13/02/2024 Court Room No.81
Dictated on: 13/02/2024
Corrected & signed on: 15/02/2024
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8 SUM SU NO. 22/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/02/2024 at 5.00 p.m. 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 13/02/2024
JUDGMENT/ORDER signed by P. O. on 15/02/2024
JUDGMENT/ORDER uploaded on 15/02/2024
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