Final Order 1

Order Details: Ex-parte Judgement
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MHCC010036342020
Presented on :24072020
Registered on :28092021
Decided on :19102022
Duration :2Y,2M,26D
EXHIBIT5
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 834 OF 2021
GANGARAM MALKU GADGE
aged 65 years of Mumbai an adult
Indian inhabitant having his address
at Shop No.1, Plot No.198, Tulja
Bhawani Society, Shivneri Nagar
Shingre Wadi, Bail Bazar, Kurla
(West), Mumbai400 070.
...Plaintiff
Versus
RAHUL MANOHAR JADHAV
age not know of Mumbai an adult
Indian inhabitant working for gain
B.M.C., Foundation Dept., "L" Ward,
S.G.Barve Road, Kurla (West),
Mumbai400070, worker No.4123822,
Paysheet No.6015 and residing at
Karavagaon, Seawood, Sector36,
behind Ganesh Ground, Sitaram
Apartment, Room No.302, 3rd Floor,
Nerul, New Mumbai.
...Defendant
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Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (Exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 19/10/2022
Judgment
This is the suit filed under rule 2 of order XXXVII of Code of
Civil Procedure, 1908 (CPC) for recovery of principal sum of
Rs.1,00,000/ along with interest thereon at the rate of 18% per
annum till its realization.
PLAINTIFF’S CASE
2. Plaintiff is a licensed Money Lender. He had lent a sum of
Rs.1,00,000/ to the defendant on 02/05/2017 in cash. Defendant had
issued demand promissory note in favour of the plaintiff on the same
day. Plaintiff demanded repayment of the said amount but defendant
neglected and failed to pay the same. Therefore, plaintiff issued demand
notice through his advocate on 20/02/2020. In spite of the notice
defendant failed and neglected to pay the amount. Therefore plaintiff
has filed present suit.
3. Defendant was duly served with writ of summons on
24.11.2021. However, he did not cause appearance before this Court
and therefore suit proceeded exparte against him.
4. In support of claim, plaintiff filed his affidavit of claim at
Exhibit3 and reiterated his claim of recovery of Rs.1,00,000/ along
with interest at the rate of 18% p.a. Plaintiff has filed and relied upon
following documents.
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Sr.
No.
Exhibit
No. Particulars
1 Exh.4/1 Demand promissory note of Rs.1,00,000/
dtd.02/05/2017.
2 Exh.4/2 Office copy of demand notice dated 20.02.2020
alongwith the courier receipts.
5. So as to decide the present suit following points arise for my
consideration. I have recorded my findings for the reasons as under :
Sr.
No.
Points/Issues Findings
1. Whether plaintiff is entitled to
recover principal amount of
Rs.1,00,000/ from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs. 1,00,000/ from the
defendant along with
interest @ 9% p.a. from
date of filing of the suit
till realization.
2. What order and decree? Suit is decreed as per
final order.
REASONS
AS TO POINT NO. 1
6. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record the requisite
evidence to prove its entitlement.
7. Plaintiff has filed his claim affidavit in support of his
contentions of receipt of promissory note for consideration of
Rs.1,00,000/. His oral testimony is supported by the original
promissory note dated 02.05.2017. Plaintiff enjoys presumption under
Section 118(a) of Negotiable Instruments Act, 1881, which supports the
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contention of plaintiff that the present promissory note was issued for
the valuable consideration of Rs.1,00,000/.
8. As noted above, plaintiff has filed demand promissory note
dated 02.05.2017 which reveals that the plaintiff has lent amount of
Rs.1,00,000/ to the defendant. Defendant agreed to repay the said
amount along with interest at the rate of 18% p.a. The said demand
note bears signature of defendant along with his thumb impression.
The address mentioned on the demand note and the address mentioned
in the recovery notice placed on record by the plaintiff at Exhibit4/2 is
the same. The summons in the present matter was duly served on the
same address. The notice was sent on his home address as well as his
office address. Thus, fact of lending amount as claimed by the plaintiff
in this claim affidavit is supported by the documents placed on record.
As there is no contra evidence on record, the said fact goes
unchallenged. Hence, I hold that the plaintiff had lent an amount of
Rs.1,00,000/ to the defendant.
9. The defendant has not appeared in the matter in spite of the
receipt of summons from this Court, which gives an inference that
defendant has nothing to contest and he do not dispute the claim of the
plaintiff. Hence, I hold an amount of Rs.1,00,000/ is due and payable
to the plaintiff from the defendant. Hence, I answer point no.1 in
affirmative.
10. So far as claim of interest is concerned, plaintiff has claimed
interest at the rate of 18 % p.a. Same is excessive as compared to rate of
interest of Nationalized Banks. Therefore, I find it just and proper to
grant interest at the rate of 9% p.a. from the date of filing of the suit till
its realization.
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AS TO POINT NO.2.
11. From the findings recorded to the point No.1, it is clear that
plaintiff is entitled to recover an amount of Rs.1,00,000/ from the
defendant along with interest at the rate of 9% per annum. Hence, in
answer to point No. 2, I proceed to pass following order.
ORDER
1) Summary Suit No. 834 of 2021 is hereby partly decreed with
cost.
2) Defendant do pay on amount of Rs.1,00,000/ (Rupees One
Lakhs Only) to the plaintiff along with interest at the rate of 9% per
annum from the date of filing of the suit i.e. 24/07/2020, till realization
of entire amount.
3. Plaintiff is entitled for refund of court fees as per rules.
4) Decree be drawn up accordingly.
Date 19/10/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
21/10/2022 2.00PM Mr. SUHAS DADARAO MAHURE
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
19/10/2022
JUDGMENT/ORDER signed by P. O. on 21/10/2022
JUDGMENT/ORDER uploaded on 21/10/2022
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