Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010036762020 Presented on 29-07-2020
Registered on 21-07-2022
Decided on 22-12-2023
Duration 03Y: 04M:24 days
Exhibit 06
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 619 OF 2022
Gangaram Malku Gadge ]
Age: 66 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
V/s.
Sachin Vasantrao Kamble ]
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.4276782, Pay Sheet No.6026 ]
Residing at Mukund Nagar, PL.L Lokhande ]
Marg, Chembur, Mumbai-400 089. ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
Defendant absent - Ex-parte.
-- 1 of 6 --
2 Sum Suit No.619/2022
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 22-12-2023
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.2,99,000/-. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is doing business of money lending. On
7th May, 2017, for valuable consideration of an amount of
Rs.2,00,000/- received by the defendant from the plaintiff, the
defendant drew and delivered to the plaintiff a demand promissory
note, agreeing thereby to repay to the plaintiff the amount of
Rs.2,00,000/- with the interest @ Rs.18% p.a. on demand.
3. The plaintiff, from time to time demanded the said
amount to the defendant. The defendant failed and neglected to pay
the said amount. Therefore, the plaintiff issued the demand notice
dated 20-02-2020 through his advocate and called upon the defendant
to pay the amount. The defendant received the said notice, but he
failed to reply the notice, and even neglected to pay the amount.
Hence, the present suit. The plaintiff has prayed for the decree of
Rs.2,99,000/- with the further interest @ Rs.18% p.a. on the amount
of Rs.2,00,000/- from the date of filing the suit till its full realization.
4. The defendant was served with the writ of summons
through Bailiff. The plaintiff has filed affidavit of service at Exh.2.
Despite service, the defendant has not caused his appearance and
-- 2 of 6 --
3 Sum Suit No.619/2022
therefore, the suit proceeded ex-parte against him by the order dated
21-10-2023.
5. In support of claim, the plaintiff filed evidence on
affidavit of his Power of attorney Ms. Priya Dhuri at Exh.3 and
reiterated the contentions for recovery of Rs.2,99,000/- along with
further interest at the rate of Rs.18% p.a. on Rs.2,00,000/-. The
plaintiff has filed and relied upon the following documents.
Sr. No. Particulars
1 Promissory Note dated 07-05-2017
2 Plaintiff Advocate’s letter dated 20-02-2020
3 Money Lender Licence
4 Form No.8 under Bombay Money Lending Act
5 Books of Accounts
6. To decide the present suit, following points arose for the
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.2,99,000/-
from the defendant?
If yes, at what rate interest?
Yes.
Entitled to interest @ Rs.9%
p.a.on Rs.2,00,000/- from the
date of filing the suit.
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 in support of his
contention of receipt of promissory note for consideration of
-- 3 of 6 --
4 Sum Suit No.619/2022
Rs.2,00,000/-. Evidence on affidavit is supported by the original
promissory note dated 07-05-2017. The plaintiff enjoys presumption
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.2,00,000/-.
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 doesn’t want to contest and he does not want to dispute
the claim of the plaintiff. In view of Rule 2(3) of order XXXVII of CPC,
owing to failure of the defendant to cause appearance, it needs to be
presumed that the defendant admits the allegations contained in the
plaint. The Demand Promissory Note is of dated 07-05-2017 for the
amount of Rs.2,00,000/-. Therefore, on the aforesaid background and
having regard to the unrebutted and unchallanged evidence of
plaintiff, I hold an amount of Rs.2,00,000/- is due and payable by the
defendant to the plaintiff.
9. It may be seen that the plaintiff has applied the interest
Rs.1,07,210.95 at the rate of Rs.18% p.a. on 2,00,000/- from 07-05-
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 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 the
claimed interest amount of Rs.1,07,210.95/-. In this way, his total
claim becomes Rs.3,07,210.95. However, his total claim exceed the
jurisdiction of this Court and therefore, to bring the suit within
pecuniary jurisdiction of this Court, he has given up the amount
Rs.8,210.95 and as such, I hold that the plaintiff is entitled to recover
-- 4 of 6 --
5 Sum Suit No.619/2022
the total amount of Rs.2,99,000/-.
10. The plaintiff had agreed to pay the interest at the rate of
Rs.18% p.a. on the amount of Rs.2,00,000/-. Therefore, the plaintiff
can be made entitled to the future interest on the amount of
Rs.2,00,000/- 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 rate of
interest of Nationalized Banks. Therefore, having regard to the
provision of section 34 of the CPC and the nature of transaction, I am
of the view that granting further 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 the further interest at the rate of
Rs.9% p.a. on the principal amount of Rs.200,000/- 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.619 of 2022 is hereby decreed with costs.
2) The defendant shall pay an amount of Rs.2,99,000/- (Rupees
Two lakhs and Ninety Nine Thousands only ) to the plaintiff.
3) The defendant shall pay to the plaintiff further interest at
the rate of Rs.9% p.a. on Rs.2,00,000/- from 29-07-2020, 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- 22-12-2023 Court Room No.61
Mumbai.
Dictated on : 22-12-2023
Corrected and signed on:26-12-2023
-- 5 of 6 --
6 Sum Suit No.619/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27-12-2023 at 4.30 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
22-12-2023
JUDGMENT/ORDER signed by P. O. on 26-12-2023
JUDGMENT/ORDER uploaded on 27-12-2023
-- 6 of 6 --