Final Order 1

Order Details: Ex-parte Judgement
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MHCC010037052020
Presented on :29-07-2020
Registered on :29-03-2022
Decided on :17-11-2022
Duration :2Y, 3M,19D
EXHIBIT-10
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 266 OF 2022
JYOTI DATTA WAGH
age.32 Years, of Mumbai an adult
Indian inhabitant having her address
at 1/11, Ram Niwas Chawl Sunder
Baug, Kurla(West), Mumbai-400 070
through her C.A. Priya Rohit Dhuri
age years.
...Plaintiff
Versus
KANTILAL AMBALAL SOLANKI
Age a not known of Mumbai, an adult
Indian inhabitant, working for gain
with B.M.C, "L" Ward, 1st Floor,
Conservancy Deparatment, S.G.Barve
Marg, Kurla (West), Mumbai-400 070.
And residing at F/20, B.M.C Chawl,
Near Lions Garden, L.B.S.Marg, Kurla
(W), Mumbai-400 070.
...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (
Exparte).
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CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 17/11/2022
JUDGMENT
(Dictated and pronounced in open Court)
This is the suit filed under rule 2 of order XXXVII of Code of
Civil Procedure, 1908 (CPC) for recovery of principal sum of
Rs.2,00,000/- along with interest thereon at the rate of 18% per annum
till its realization.
PLAINTIFF’S CASE
2. Plaintiff is a licensed Money Lender. It is contended that on
02/08/2017 defendant executed a Demand Promissory Note in favour
of plaintiff for valuably consideration of Rs.2,00,000/- received by
defendant from plaintiff against and on the basis of the execution and
handing over of said Demand Promissory Note. Defendant promised to
pay interest thereon at rate of 18% p.a. Plaintiff demanded repayment
of the said amount but defendant neglected and failed to pay the same.
Therefore, plaintiff issued demand notice through his advocate on
21/07/2020. In spite of the notice defendant failed and neglected to
pay the amount. Therefore plaintiff has filed present suit.
3. Defendant was duly served with writ of summons on
05.05.2022. However, he did not cause appearance before this Court
and therefore suit proceeded
exparte against him.
4. In support of claim, plaintiff filed his affidavit of claim at
Exhibit-6 and reiterated his claim of recovery of Rs.2,00,000/- along
with interest at the rate of 18% p.a. Plaintiff has filed and relied upon
following documents.
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Sr.
No.
Exhibit
No. Particulars
1 Exh.8 Demand promissory note of Rs.2,00,000/-
dtd.02/08/2017.
2 Exh.9 Office copy of demand notice dated 21.07.2020
alongwith speed post acknowledgment.
5. So as to decide the present suit following points arise for my
consideration. I have recorded my findings for the reasons as under :-
Sr. No. Points/Issues Findings
1. Whether plaintiff is entitled to
recover principal amount of
Rs.2,00,000/- from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs. 2,00,000/- from the
defendant along with
interest @ 9% p.a. from
date of filing of the suit
till realization.
2. What order and decree? Suit is decreed as per
final order.
REASONS
AS TO POINT NO. 1
6. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record the requisite
evidence to prove its entitlement.
7. Plaintiff has filed his claim affidavit in support of his
contentions of receipt of promissory note for consideration of
Rs.2,00,000/-. His oral testimony is supported by the original
promissory note dated 02.08.2017. Plaintiff enjoys presumption under
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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. As noted above, plaintiff has filed demand promissory note
dated 02.08.2017 which reveals that the plaintiff has lent amount of
Rs.2,00,000/- to the defendant. Defendant agreed to repay the said
amount along with interest at the rate of 18% p.a. The said demand
note bears signature of defendant along with his thumb impression.
The address mentioned on the demand note and the address mentioned
in the recovery notice placed on record by the plaintiff at Exhibit-9 is
the same. The summons in the present matter was duly served on the
same address. The notice was sent on residential address as well as his
office address of defendant. Thus, fact of lending amount as claimed by
the plaintiff in this claim affidavit is supported by the documents placed
on record. As there is no
contra evidence on record, the said fact goes
unchallenged. Hence, I hold that the plaintiff had lent an amount of
Rs.2,00,000/- to the defendant.
9. The defendant has not appeared in the matter in spite of the
receipt of summons from this Court, which gives an inference that
defendant has nothing to contest and he does not dispute the claim of
the plaintiff. Hence, I hold an amount of Rs.2,00,000/- is due and
payable by defendant to the plaintiff. Hence, I answer point no.1 in
affirmative.
10. So far as claim of interest is concerned, plaintiff has claimed
interest at the rate of 18 % p.a. Same is excessive as compared to rate of
interest of Nationalized Banks. Therefore, I find it just and proper to
grant interest at the rate of 9% p.a. from the date of filing of the suit till
its realization.
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AS TO POINT NO.2.
11. From the findings recorded to the point No.1, it is clear that
plaintiff is entitled to recover an amount of Rs.2,00,000/- from the
defendant along with interest at the rate of 9% per annum. Hence, in
answer to point No. 2, I proceed to pass following order.
ORDER
1) Summary Suit No. 266 of 2022 is hereby partly decreed with
cost.
2) Defendant do pay on amount of Rs.2,00,000/- (Rupees Two
Lakhs Only) to the plaintiff along with interest at the rate of
09% per annum from the date of filing of the suit i.e.
29/07/2020, till realization of entire amount.
3) Plaintiff is entitled for refund of court fees as per rules.
4) Decree be drawn up accordingly.
Date- 17/11/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
22/11/2022 5.45P.M. Mr. SUHAS DADARAO MAHURE
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
17/11/2022
JUDGMENT/ORDER signed by P. O. on 22/11/2022
JUDGMENT/ORDER uploaded on 22/11/2022
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