Final Order 1

Order Details: Copy of Judgment
Pdf Text: Filed on :16.07.2020
Registered On :04.02.2021
Decided on :02.12.2021
Duration : Y-01/M-04/D-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 103 OF 2021
IN
Exhibit-08
Ambalal Rikhabchandji Jain
Age: 47 years.
of Mumbai, an adult Indian inhabitant,
carrying on business of Money Lending as a
Sole Proprietor in the name and style of Ritik
Creation at and from Room No. 20, Ground
Floor, Gulam Mohmad Building, Navroji Hill
Road no. 07, Dongari Mumbai- 400 009.
... Plaintiff
V/s.
1.Narendra Bankimchandra Rathod
Age not known of Mumbai an adult Indian,
inhabitant working for gain Mumbai ‘C’ Ward,
BMC, Shreekant palekar Marg, Chandanwadi,
Mumbai- 400 002, EMP Code: 411894.
Residing at BMC Chawl, ‘B’ Block,
Room No. 41, Mavji Rathod Road,
Walpakhadi, Mumbai- 400 009.
2. Rekha Narendar Rathod
age not known of Mumbai an adult Indian,
inhabitant Residing at BMC Chawl, ‘B’ Block,
Room No. 41, Rathod Road,
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Summ. Suit No.103/2021
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Walpakhadi, Mumbai- 400 009. ... Defendants
SUIT FOR RECOVERY OF MONEY
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 02/12/2021
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is carrying on business of money lending as a sole
properiter in the name and style of Ritik Creation. The defendant no.1
approached to the plaintiff and on dtd.29.7.2017 for valuable
consideration of Rs.80,000/- received from plaintiff, drew a bill of
exchange directing thereby, defendant no.2 to pay to the plaintiff or
Order at Mumbai a sum of Rs.80,000/- on demand. Said bill of
exchange was accepted and delivered by defendant no.2 to the plaintiff
on the same day. On dtd. 29.8.2017 the plaintiff presented said bill of
exchange to the defendant no.2 and demanded Rs.80,000/-. The
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defendant no.2 failed to honour said demand. Similarly, the defendant
no.1 also failed and neglected to pay the amount of Rs.80,000/- . The
plaintiff issued letter/notice to advocate on 30.7.2019 to the defendants
calling upon them to pay the outstanding amount alongwith accrued
interest but the defendants failed to comply with said requisition. The
plaintiff averred that the defendants are liable jointly and severally to
pay the outstanding amount with interest.
3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.1,21,148.49ps/- to the plaintiff and
further interest at the rate of 18% p.a from the date of suit still its
realization. Hence, this suit.
4. The suit summons were duly served on the defendant nos.1
and 2 but they failed to appear. Hence, suit is posted for judgment as
per order XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,21,148.49ps/
with interest
@ 18% per annum
2. What order and decree? As per final order.
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REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 A Bill of Exchange dated 29th July,
2017 being Exhibit “A” to the
plaint.
Exh.7/1
2 Plaintiff’s Advocates’ letter dated
30th July 2019 being Exhibit “B” to
the Plaint alongwith the postal
records in connection with the
transmission and delivery thereof.
Exh.7/2
3 Money Lender Licence. Exh.7/3
4 Forms under Bombay Money
Lending Act.
Exh.7/4
5 Books of Accounts Exh.7/5
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.06 regarding service of writ of
summons to the defendants. The documents produced on record by the
plaintiff shows that the defendant no.1 received the amount of
Rs.80,000/- from the plaintiff drawing bill of exchange directing
thereby defendant no.2 to pay to the plaintiff or order a sum of
Rs.80,000/- on demand and said bill of exchange has been accepted
and delivered by the defendant no.2 to the plaintiff. Further, it reveals
from the record the said transaction took place on dtd. 29.7.2017, the
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notice/letter of demand was issued to the defendants on dtd. 30.7.2019
and the suit is filed on 10.7.2020. As such, the plaintiff’s claim in the
suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has given amount of Rs.80,000/- to
the defendant no.1 on bill of exchange. Said amount is not repaid either
by the defendant no.1 or by defendant no.2. Both the defendants are
liable jointly and severally to pay the outstanding amount of
Rs.80,000/- to the plaintiff. In this background, I have arrived at the
conclusion that the plaintiff is entitled to recover sum of Rs.80,000/-
from the defendants jointly and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.1,21,148.49ps/- and said amount is calculated
alongwith interest at the rate of 18% p.a till the date of filing of the suit.
So the total outstanding amount Rs.1,21,148.49ps/-. Apart from said
amount which is due against the defendant on the date of filing of the
suit, the plaintiff has claimed interest at the rate of 18% per annum on
the principal amount. As per section 34 of the Code of Civil Procedure
the rate of interest may exceed 6% per annum, if the transaction is
commercial and there is no contract pertaining to the same between the
parties. In the present case the transaction is a commercial one and
there is contract existing between the parties as to the rate of interest
which shall be levied. As per the agreed terms defendant is liable to pay
the interest at the rate of 18% p.a. Therefore, I hold, the rate of interest
at the rate of 18% per annum would be just and proper to be awarded
on the principal sum adjudged i.e. amount of Rs.80,000/-. Hence, point
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no.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,21,148.49ps/-from the
defendant nos. 1 and 2 jointly and severally with interest at the rate of
18% per annum on the principal sum of Rs.80,000/- from the date of
filing of the suit till its realization. Plaintiff is also entitled to recover
cost of the suit from the defendants. Hence, in answered to point no.2, I
proceed to pass the following order.
ORDER
1. The defendant nos.1 and 2 shall pay
Rs.1,21,148.49ps/-(Rs. One Lakh Twenty One
Thousand One Hundred Forty Eight Rupees and Forty
Nine paise Only) to the plaintiff jointly and severally,
with interest at the rate of 18% per annum on the
principal sum of Rs.80,000/- from the date of filing of
the suit till its realization.
2. The defendant nos. 1 and 2 do pay costs of the suit to
the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 02/12/2021 Gr. Bombay
Dictated on : 02/12/2021
Typed on : 02/12/2021
Signed on : 02/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/12/2021 05.40 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
02/12/2021
JUDGMENT/ORDER signed by
P.O.on
02/12/2021
JUDGMENT/ORDER uploaded on 02/12/2021
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