Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: SUMMARY SUIT NO.489/2019 1
Received on : 30032019
Registered on : 16042019
Decided on : 18102019
Duration : 00Y 06M 20D
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 489 of 2019
(UNDER ORDER XXXVII ,RULE 2 OF C.P.C.)
( CNR NO.: MHCC010036592019)
Dayashankar Dudhnath Vishwakarma
Age 34 years, Occ.Service, Hindu,
Indian Inhabitant of Mumbai residing at
Room No.4, Mzaharashtra Chawl,
Yadav Nagar, Khairani Road, Sakinaka
Mumbai 400 072. ...Plaintiff
Versus
M/s.Nirmal Lifestyle (Kalyan) Pvt.Ltd.
A private Limited company,
Duly incorporated under the provisions
of Companies Act, 1956, having its office
at 3rd floor, Multiplex Building,
L.B.S.Marg,Mulund(W),Mumbai400 080. ….Defendant
Appearances:
Advocate Mr. Deepak Salunkhe for the Plaintiff.
Defendants Exparte.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATED : 18th OCTOBER 2019
J U D G M E N T
This is a suit for recovery of Rs. 16,23,009//(Rupees Sixteen
Lakhs Twenty Three Thousand and Nine only).
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SUMMARY SUIT NO.489/2019 2
2. Plaintiff case in nut shell is that somewhere in or about
September 2014 plaintiff came across the advertisement of the sale of
land/plot at Kalyan, DistrictThane. The plaintiff agreed to purchase
residential flat in a project of defendant. The total cost of flat was
Rs.26,82,288/. The plaintiff paid sum of Rs.11,00,000/ by cheque.
The defendant issued letter on 01/09/2014 in favour of plaintiff.
Plaintiff agreed to pay the remaining balance amount of Rs.15,82,288/.
There was no pro gress in construction till the year 2017. On
31/07/2017 plaintiff received a letter from defendant that his booking
against the flat has been cancelled due to indefinite delay in
construction. The defendant has also issued five cheques of
Rs.14,62,170/ to refund the booking amount paid by plaintiff with
interest @ 11%p.a. All the cheques were dishonoured. Defendant
refused to pay the amount. Defendant is in default of Rs. 16,23,009/
(Rupees Sixteen Lakhs Twenty Three Thousand and Nine only). Hence,
this suit.
3. The defendant was served with summons for appearance but he
remained absent therefore, suit is proceeded exparte against him.
4. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1. Whether plaintiff proves that he has
paid amount of Rs. 11,00,000/ as
booking charges to defendant?
Yes
2. Whether plaintiff proves that
amount of Rs. 16,23,009//(Rupees
Sixteen Lakhs Twenty Three Thousand
Yes
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SUMMARY SUIT NO.489/2019 3
and Nine only) is due and recoverable
from defendants?
3. Whether plaintiff is entitled for
recovery of Rs. 16,23,009//(Rupees
Sixteen Lakhs Twenty Three Thousand
and Nine only) with interest as
claimed?
Yes
4. What order and decree? As per final order
REASONS
AS TO POINT NOS.1 TO 4.
5. Since all points are interlinked they are discussed together. To
prove its case plaintiff examined himself vide Exh.6 and filed bank
statement, letters, cheques,return memos, demand notice, postal
receipts and acknowledgements, receipt of payment and particulars of
claim.
6. Heard Ld.counsel for plaintiff.
7. The affidavit is supported by documents. The bank statement,
letters, cheques,return memos, demand notice, postal receipts and
acknowledgements, receipt of payment and particulars of claim shows
that somewhere in or about September 2014 plaintiff came across the
advertisement of the sale of land/plot at Kalyan, DistrictThane. The
plaintiff agreed to purchase residential flat in a project of defendant.
The total cost of flat was Rs.26,82,288/. The plaintiff paid sum of
Rs.11,00,000/ by cheque. The defendant issued letter on 01/09/2014
in favour of plaintiff. Plaintiff agreed to pay the remaining balance
amount of Rs.15,82,288/. There was no progress in construction till
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SUMMARY SUIT NO.489/2019 4
the year 2017. On 31/07/2017 plaintiff received a letter from
defendant that his booking against the flat has been cancelled due to
indefinite delay in construction. The defendant has also issued five
cheques of Rs.14,62,170/ to refund the booking amount paid by
plaintiff with interest @ 11%p.a. All the cheques were dishonoured.
Defendant refused to pay the amount. Defendant is in default of Rs.
16,23,009//(Rupees Sixteen Lakhs Twenty Three Thousand and Nine
only). As far as rate of interest is concerned plaintiff has prayed for rate
of 11% p.a. The relationship between plaintiff and defendant is
contactual relationship. The refund given by defendant was calculated
@ 11%p.a.hence, interest @ 11%p.a. can be granted. Therefore, point
No.1 to 3 is answer as 'Yes' and following order is passed.
ORDER
1. Suit is exparte decreed with costs.
2. Defendant do pay to the plaintiff the amount of Rs.
16,23,009//(Rupees Sixteen Lakhs Twenty Three Thousand and Nine
only) with interest @ 11% p.a. from the date of filing of the suit till full
and final realization.
3. Court fee be refunded as per rules.
4. Decree be drawn up accordingly.
(M.S.LONE)
Judge,
Date: 18/10/2019 City Civil Court,Gr. Bombay
Dictated on : 18/10/2019
Transcribed on : 18/10/2019
Signed on : 22/10/2019
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SUMMARY SUIT NO.489/2019 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23/10/2019 at 4.40m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of Judgment/Order 18/10/2019
Judgment/Order signed by P.O. on 22/10/2019
Judgment/Order uploaded on 23/10/2019
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