Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010036352020 Presented on 24-07-2020
Registered on 06-07-2022
Decided on 07-07-2023
Duration 01Yrs : 11M: 14D
Exhibit 07
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 574 OF 2022
Gangaram Malku Gadge Age 62 yrs. ]
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), Mumbai-400 070. ]...Plaintiff
VERSUS
Rajendra Karbhari Mokal, age not known ]
of Mumbai and adult Indian inhabitant ]
working for gain Municipal Electricity ]
supply & Transportation Enterprises, ]
B.E.S.T., Worker No.191264, Paysheet No. ]
35/36, Mumbai. ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (
Ex-parte).
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CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 07/07/2023.
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.1,53,408.21/- along with interest thereon at the rate of 18% per
annum till its realization.
2. The plaintiff is doing business of money lending. On 28th
June, 2017, for the valuable consideration an amount of Rs. 1 lakh
received by defendant from the plaintiff. The defendant drew and
delivered a Promissory Note, and thereby agreed to pay the amount to
the plaintiff on demand with the interest at the rate of 18% p.a.
thereon.
3. The plaintiff, from time to time demanded the said amount
from the defendant. The defendant failed and neglected to pay the said
amount. Therefore, the plaintiff issued the demand notice dated
21-02-2020 through his advocate and called upon the defendant to pay
the amount, but in spite of receipt of notice, the defendant failed and
neglected to pay the amount. Hence, the present suit.
4. The defendant was served with the writ of the suit
summons. The plaintiff has filed affidavit of service at Exh.2. Despite of
service, the defendant has not caused his appearance and therefore, the
suit proceeded ex-parte against him by the order dated 03-02-2023.
5. In support of claim, the plaintiff filed affidavit of claim of
Priya Dhuri at Exh.3 and reiterated his contention of recovery of
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Rs.1,53,408.21/- along with interest at the rate of 18% p.a. The plaintiff
has filed and relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.8 Promissory Note dated 28-06-2017
2 Exh.9 Plaintiff Advocate’s letter dated 21-02-2020
3 - Xerox copy Money Lender Licence
4 - Xerox copy of Forms under Bombay Money Lending
Act
5 - Xerox copy of Books of Accounts
6. So to decide the present suit, following points arose for my
consideration. I have recorded my findings along with reasons on the
said point as under :-
Sr. No. Points/Issues Findings
1. Whether the plaintiff is
entitled to recover amount of
Rs.1,53,408.21/- from the
defendant?
If yes, at what rate interest?
Partly yes. Plaintiff is entitled to
recover an amount of
Rs.1,53,408.21/- from the
defendant along with interest @
9% p.a. from date of filing of the
suit till 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 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 28-06-2017. The plaintiff enjoys presumption
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under Section 118(a) of Negotiable Instruments Act, 1881, which
supports the contention of plaintiff that the present promissory note
was issued for the valuable consideration of Rs.1,00,000/-.
8. The defendant has not appeared in the matter in spite of
the receipt of summons from this Court, 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 28/06/2017. Therefore, I hold that the plaintiff
is entitled to recover the amount of Rs. 1,00,000/- on the strength of
promissory note.
9. It may be seen that the plaintiff has applied the interest at
the rate of 18% p.a. on Rs.1,00,000/- from 28-06-2017 till 24-07-2020
i.e. till filing the suit and claimed decree for Rs.1,53,408.21/-. The
plaintiff had agreed to pay the interest at the rate of Rs.18% p.a. on the
amount of Rs. 1,00,000/-. Therefore, I hold that the plaintiff is entitled
to the decree for the amount of Rs. 1,53,408.21/-. The plaintiff has
prayed for the further interest at the same rate on the decreetal amount.
Same is excessive as compared to 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 interest at the rate of Rs.9% p.a. on the
decreetal amount would be just and proper. Hence, I hold that the
plaintiff is entitled to interest at the rate of Rs.9% p.a. on decreetal
amount, 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. 574 of 2022 is hereby partly decreed with
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costs.
2) The defendant shall pay an amount of Rs.1,53,408.21/- to the
plaintiff alongwith interest at the rate of Rs.9% p.a. from
24-07-2020, the date of filing of suit till its full realization.
3) The plaintiff is entitled to get refund 2/3rd court-fees paid by
him.
4) Decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 07-07-2023 Court Room No.61
Mumbai.
Dictated on : 07-07-2023
Corrected and signed on: 10-07-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11-07-2023 at 11.30a.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
07-07-2023
JUDGMENT/ORDER signed by P. O. on 10-07-2023
JUDGMENT/ORDER uploaded on 11-07-2023
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