Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.836/2021
MHCC010036772020 Presented on : 29/07/2020
Registered on : 28/09/2021
Decided on : 10/08/2023
Duration : 03Y 00M 13D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.11
SUMMARY CIVIL SUIT NO.836 OF 2021
GANGARAM MALKU GADGE,
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.
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VERSUS
SATISH VAMAN KHARATE,
of Mumbai an adult Indian Inhabitant
working for gain B.M.C., Conservancy Dept.,
“L” Ward, S. G. Barve Road, Kurla (West),
Mumbai – 400 070, Emp Code No.4158660
and residing at Alidada Estate, Zopadpatti 2
and Nearer Area S.G. Barve Marg, South,
Nehru Nagar, Kurla (E), Mumbai – 400 070.
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] ..Defendant
Appearance :-
Mr. Ramesh Jain, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 10/08/2023.
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No.836/2021
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.1,53,408.21/- under the demand promissory note. The plaintiff has
come with the case that he has advanced loan of Rs.1,00,000/- to the
defendant, who executed demand promissory note on 20/06/2017.
The defendant had agreed to pay the amount of Rs.1,00,000/- on
demand alongwith interest at the rate of 18% per annum. However,
defendant did not pay the loan amount, therefore, the plaintiff is
entitled for recovery of amount alongwith interest at the rate of 18%
per annum.
2 The writ of summons was served upon the defendant vide
Exh-05. Defendant accepted the service of summons, but failed to
appear before the Court. Hence, as per
roznama dated 29/03/2022,
suit proceeded ex-parte against defendant.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the
defendant has executed demand
promissory note of Rs.1,00,000/- ?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
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3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
documents under list (Exh-07). Heard learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered her Claim
Affidavit (Exh-06) alongwith documents as per list (Exh-07). On
perusal of demand promissory note, it reveals that it bears signature
and thumb impression of the defendant. In consequence of failure to
pay the amount under the demand promissory note, the plaintiff has
issued a notice on 21/02/2020. Thus, the plaintiff is entitled for
recovery of amount under the demand promissory note. The plaintiff is
a money lender having license bearing No.RBE-851, hence, he is
entitled to recover the amount as a money lender. He filed another
document related to his license and forms and also cashbook at Article
A to C. Thus, it is established that the defendant has executed the
demand promissory note for Rs.1,00,000/-.
6 There is nothing on record to show that the defendant has
ever paid any amount under the demand promissory note. His absence
and omission to appear before the Court on being served with the writ
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No.836/2021
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, the plaintiff is entitled to
recover the amount under the demand promissory note.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e. notice
of advocate dated 21/02/2020, till its full realisation. In view of above
discussions, I answer point No.1 in affirmative and point Nos.2 and 3
in partly affirmative.
8 As the defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
ORDER
1. Summary Civil Suit No.836/2021, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.1,00,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice issued by
the advocate of plaintiff on 21/02/2020, till its full
realisation from the defendant.
3. Court fees, if any, be refunded as per rule.
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4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 10/08/2023 C.R. No.15
Dictated on : 10/08/2023
Typed on : 10/08/2023
Signed on : 10/08/2023
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“Certified to be true and correct copy of the original signed order”.
11/08/2023
at about 11.20 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 10/08/2023
Order signed by Hon'ble Judge on : 10/08/2023
Order uploaded on : 11/08/2023
at about 11.20 a.m.
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