Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.621/2022
MHCC010037002020 Presented on : 29/07/2020
Registered on : 21/07/2022
Decided on : 23/11/2023
Duration : 03Y 03M 26D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.11
SUMMARY CIVIL SUIT NO.621 OF 2022
SWATI SAHEBRAO GADGE
of Mumbai an adult Indian Inhabitant,
having her address at Room No.1, Plot No.198,
Tulja Bhawani Society, Shivneri Nagar, Shingre Wadi,
Bail Bazar, Kurla (West), Mumbai - 400 070 through
her C.A. Priya Dhuri.
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] ..PLAINTIFF
VERSUS
MEHUL MOHAN BERADIYA
of Mumbai an adult Indian Inhabitant,
working for gain with BMC, Cleaner, Supervisor,
Conservancy Department “K” West Section,
Tata Compound, S. V. Road, Andheri (W),
Mumbai – 400 058. Worker No.4505860.
Residing at Juhu Galli, Ram Temple, Slum
Harijan Vas, Andheri (W), Mumbai – 400 058.
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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 : 23/11/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.1,53,802.73/- under the demand promissory note. The plaintiff has
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come with the case that she has advanced loan of Rs.1,00,000/- to the
defendant, who executed demand promissory note on 02/05/2017.
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 defendant vide
Exhibit-05, but the defendant refused to accept the summons. The writ
of summons was pasted on the door of defendant, but he failed to
appear before the Court and hence, as per the order in
roznama dated
12/07/2023, 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 she is
entitled to charge interest as prayed for ?
Partly Affirmative
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 plaintiff entered the witness box and relied on various
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documents under list (Exhibit-07). Heard learned advocate for
plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered her Claim
Affidavit (Exhibit-06) alongwith documents as per list (Exhibit-07). On
perusal of demand promissory note, it reveals that it bears signature
of the defendant. Inconsequence of failure to pay the amount under
the demand promissory note, the plaintiff has issued a notice on
20/02/2020. 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-1110, hence, she is entitled to recover
the amount as a money lender. She filed another document related to
her license, Form-10 and also cashbook. Thus, there is no reason to
disbelieve the contentions of plaintiff, which remains unchallenged.
Hence, suit deserves to be decreed as per the provisions of Order
XXXVII Rule 2(3) of the Code of Civil Procedure.
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
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, it is established that the
defendant has executed the demand promissory note for
Rs.1,00,000/-.
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
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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, she 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 of plaintiff dated 20/02/2020, 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.621/2022, 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 20/02/2020, till its full
realisation from the defendant.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 23/11/2023 C.R. No.15
Directly typed on : 23/11/2023
Signed on : 23/11/2023
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“Certified to be true and correct copy of the original signed order”.
24/11/2023
at about 5.20 p.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 : 23/11/2023
Order signed by Hon'ble Judge on : 23/11/2023
Order uploaded on : 24/11/2023
at about 5.20 p.m.
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