Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010035672020 Presented on 16-07-2020
Registered on 22-10-2021
Decided on 25-10-2023
Duration 03Y: 03M: 09D
Exhibit 06
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 899 OF 2021
Swati Sahebrao Gadge Age 40 yrs. ]
of Mumbai an adult Indian inhabitant ]
having her address at Room No.1, Plot No.198, ]
Tulja Bhawani Society Shivneri Nagar ]
Shingre Wadi, Bail Bazar, Kurla (West), ]
Mumbai-400 070 through ]
Her C.A. Priya Dhuri ]...Plaintiff
V/s.
Mahendra Babu Aashkka ]
age not known of Mumbai an adult Indian ]
inhabitant working for gain with B.M.C., Conservancy ]
Department “ L ” Ward, S.G.Barve Marg, Kurla (W), ]
Mumbai- 400 070 Worker No.4154879. ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
Defendant absent (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 25/10/2023.
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J U D G M E N T
(Pronouncement and delivered in the open court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of Rs.2,30,186.30. Brief
facts of plaintiff’s case may be summarized as under:
2. The plaintiff does the business of money lending. On
27-04-2017, the defendant executed a Demand Promissory Note in
favour of plaintiff for valuable consideration of Rs.1,50,000/-. The
defendant promised to repay the said sum of Rs.1,50,000/- alongwith
interest thereon at the rate of 18% p.a. on demand.
3. According to the plaintiff, from time to time he demanded
the said amount from the defendant, but the defendant failed and
neglected to pay the said amount. Therefore, the plaintiff issued a
demand notice dated 15-02-2022, and called upon him to pay the
amount. But inspite of receipt of notice, the defendant failed and
neglected to pay the amount. Hence, the present suit. The plaintiff
prayed for the decree for amount of Rs.2,30,186.30 and interest at the
rate of Rs.18% p.a. on the principal amount of Rs.1,50,000/- from the
date of filing the suit till its full realization.
4. The defendant was served with the writ of the suit
summons. The plaintiff has filed affidavit of service at Exh.5. Despite
the service of the suit summons, the defendant has not caused his
appearance and therefore, the suit proceeded ex-parte against him by
the order dated 02-05-2023.
5. In support of claim, the plaintiff filed affidavit of claim of
her power of attorney of Priya Dhuri at Exh.06 and reiterated her
contention for recovery of Rs.2,30,186.30 along with the further
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interest at the rate of Rs.18% p.a. The plaintiff has filed and relied
upon the following documents.
Sr. No. Particulars
1 Promissory Note dated 27-04-2017
2 Plaintiff’s Advocates letter dated 15-02-2020
3 Money Lender Licence
4 Forms under Bombay Money Lending Act
5 Books of Accounts
6 Copy of power of attorney
6. 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.2,30,186.30
from defendant?
If yes, at what rate of interest?
Yes.
Entitled to interest @ Rs. 9%
p.a. on Rs.1,50,000/- from
16-07-2020 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:
7. The plaintiff has filed claim affidavit of her power of
attorney Priya Dhuri in support of her contentions of receipt of
promissory note for consideration of Rs.1,50,000/-. Her oral testimony
is supported by the original promissory note dated 27-04-2017. The
plaintiff enjoys presumption under Section 118(a) of Negotiable
Instruments Act, 1881, which supports the contention of the plaintiff
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that the demand promissory note was executed for the valuable
consideration of Rs.1,50,000/-. It is appearing that the plaintiff is a
money lender and she has money lending licence, and she lent the
money Rs.1,50,000/- on the interest at the rate of Rs.18% p.a. The
Demand Promissory Note placed on record clearly supports this case of
the plaintiff.
8. The defendant has not appeared in the matter inspite of
the service of writ of summons, which gives an inference that the
defendant has nothing to contest and he does not dispute the claim of
the plaintiff. In view of Rule 2 (3) of order XXXVII of CPC, owing to
failure of defendant to cause appearance, it needs to be presumed that
the defendant admits the allegations contained in the plaint. The
Promissory Note is of dated 27-04-2017 for the amount of
Rs.1,50,000/-. Therefore, I hold that the plaintiff is entitled to recover
the principal amount of Rs.1,50,000/- on the strength of promissory
note.
9. It may be seen that the plaintiff has applied the interest
Rs.80,186.30 at the rate of Rs.18% p.a. from 27-04-2017 till filing of
the suit. In view of provision of Section 79 of Negotiable Instruments
Act, when the suit is based on promissory note, the plaintiff can be held
entitled to the interest at the agreed rate of interest i.e. @ Rs.18% p.a.
from the date execution of the said promissory note till filing the suit.
Hence, I hold that the plaintiff is entitled to interest amount of
Rs.80,186.30. Thus, the plaintiff is entitled to recover the total amount
of Rs.2,30,186.30 and rounding it Rs.2,30,186/-.
10. The plaintiff had agreed to pay the interest at the rate of
Rs.18% p.a. on the amount of Rs.1,50,000/-. Therefore, I am of the
view that the plaintiff can be made entitled to the further interest on
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the said amount from the date of filing the suit. The plaintiff has
prayed for the further interest at the rate of Rs.18% p.a. However, I am
of the view that the same is excessive as compared to the rate of
interest of Nationalized Banks. Therefore, having regard to the
provision of section 34 of the CPC, I am of the view that granting the
interest at the rate of Rs.9% p.a. on the principal amount would be just,
proper and reasonable. Hence, I hold that the plaintiff is entitled to
interest at the rate of Rs.9% p.a. on the principal amount, from the
date of filing the suit till its full realization and 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.899 of 2021 is hereby decreed with the costs.
2) The defendant shall pay an amount of Rs.2,30,186/- (Rupees
Two Lakhs, Thirty Thousands, One Hundred and Eighty Six only)
to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Rs.1,50,000/- at the rate of Rs.9% p.a. from 16-07-2020, the
date of filing of suit till its full realization.
4) The plaintiff is entitled to get refund 2/3rd of the court-fees paid
by him.
5) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date: 25-10-2023 Court Room No.61
Mumbai.
Dictated on :25-10-2023
Corrected and signed on:26-10-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26-10-2023 at 12.45 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
25-10-2023
JUDGMENT/ORDER signed by P. O. on 26-10-2023
JUDGMENT/ORDER uploaded on 26-10-2023
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