Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Commercial Suit No.07/2019
Received on : 27.03.2019
Registered on : 15.04.2019
Decided on : 29.01.2020
Duration : Y M D
00 10 04
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 07 OF 2019
CNR NO.: MHCC01-003736-2019
Piloo Aspi Engineer,
of Mumbai Indian Inhabitant, Age 80 yrs.
Residing at 86, “Valentina”, 8th floor,
Navroji Gamadia Road, Off. Peddar Road,
Mumbai – 400 026. ...Plaintiff
Versus
1. D.S. Kulkarni & Co.,
Age not known,
a registered partnership firm having
its principal place of business at
8/2, Ravi Building,
Sadashiv Peth, Pune – 30
as well as at Bengali Maharaj Raod,
Balgandharv, Pune – 411 002.
2. Sakharam Sadashiv Kulkarni,
Age not known,
of Pune Indian Inhabitant,
residing at 2, Somwar Peth,
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Pune -11.
3. Deepak Sakharam Kulkarni,
Age not known,
of Pune Indian Inhabitant,
residing at 80, Meghana Society,
Sokhomagar, Pune – 9,
4. Phadke Hemant Neelkanth,
Age not known
of Pune Indian Inhabitant,
residing at 80, Meghana Society,
Sokhomagar, Pune -9.
5. R. J. Krishna,
Age not known,
of Pune Indian Inhabitant,
carrying on profession as
Chartered Accountant residing at
B-11, New Meenal Co-operative
Housing Society Ltd., 884/7,
Karve Road, Pune -4.
6. Jyoti Deepak Kulkarni,
Age not known,
of Pune Indian Inhabitant,
residing at 80, Meghana Society,
Tulsibagwale Colony,
Pune – 9.
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7. Makarand Sakharam Kulkarni,
Age not known,
of Pune, Indian Inhabitant,
residing at Vanashree, 44/7,
Navsahyadri Co-operative Housing
Society Ltd., Pune – 29. ...Defendants
Appearances:-
Advocate Mr. Giriraj for the Plaintiff.
Defendants Ex-parte.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 29th JANUARY, 2020.
[ J U D G M E N T ]
This is the suit filed by plaintiff for recovery of
Rs.25,70,000/- along with interest from the defendants.
Allegations of plaintiff in short are as under :-
1. Plaintiff has stated that the defendants had approached the
plaintiff through her son, Adil Engineer, for a short term loan, to which
the plaintiff agreed and the plaintiff lent and advanced on 22nd July,
2014 to the defendant No.1, a sum of Rs.20,00,000/- by cheque, which
was the only Financial Transaction which the plaintiff had with the
defendants and that the said loan was to be repaid by the defendants to
plaintiff within 3 months i.e. on 22nd October, 2014 together with
interest at the rate of 12% per annum accrued thereon. In consideration
of the said loan amount lent and advanced by the plaintiff to the
defendants, the defendants issued a Loan Receipt dated 22nd July, 2014
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duly signed by the Authorized Signatory of the defendants recording the
said loan amount of Rs.20,00,000/- and cheque No.50721 dated 22nd
October, 2014 and further recording the quantum of interest at the rate
of 12% per annum for a period of 3 months.
2. Plaintiff has further stated that on the date of maturity and at
the request of the defendants, the said loan amount was extended
under the Loan Receipt dated 22nd October, 2014 containing similar
terms and conditions as mentioned in Exhibit “A”. The said loan amount
of Rs.20,00,000/- was repayable by the defendant on 22nd January,
2015.
3. Plaintiff has further stated that again on the date of maturity and
at the request of the defendants, the said loan amount of
Rs.20,00,000/- was extended upto 22nd April, 2015 in respect of which
the defendants executed another Loan Receipt dated 22nd January,
2015.
4. Plaintiff has further stated that again on the date of maturity and
at the request of the defendants, the said loan amount of
Rs.20,00,000/- was further extended upto 22nd January, 2016 in respect
of which the defendants executed another Loan Receipt dated 22nd
October, 2015.
5. Plaintiff has further stated that again on the date of maturity and
at the request of the defendants, the said loan amount of
Rs.20,00,000/- was further extended upto 22nd April, 2016 in respect of
which the defendants executed another Loan Receipt dated 22nd
January, 2016.
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6. Plaintiff has further stated that again on the date of maturity and
at the request of the defendants, the said loan amount of
Rs.20,00,000/- was further extended upto 22nd July, 2016 in respect of
which the defendants executed another Loan Receipt dated 22nd April,
2016.
7. Plaintiff has further stated that defendant No.1 has duly
confirmed, acknowledged, executed and handed over to the plaintiff the
said Loan Receipts and the cheques in repayment of the loan amount of
Rs.20,00,000/-. The defendant Nos.2 to 7, in their capacity as partners
of defendant No.1, are jointly and severally liable to pay to the plaintiff
the total amount claimed in suit. In these circumstances, it is just,
proper, equitable and essential that this Court may be pleased to order
and decree that the defendants are jointly and severally liable to pay to
plaintiff the total sum of Rs.25,70,000/- together with interest thereon
accrued at the rate of 12% p.a. calculated from the expiry of the loan
period of the last renewal which has remained unpaid till the date of
repayment thereof. Therefore, plaintiff filed this suit.
8. Defendant Nos. 1 to 7 failed to appear in the suit, therefore, suit
has proceeded ex-parte against them.
9. Heard the Ld. Advocate for the plaintiff.
10. Following points arise for determination and their findings
followed by reasons are as stated below:-
Sr. No. POINTS FINDINGS
1. Whether defendant Nos. 1 to 7 can
be jointly and severally directed to
pay sum of Rs.25,70,000/- to plaintiff
...Partly in the
affirmative.
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alongwith interest @ 12% p. a. on
the sum of Rs.20,00,000/- from the
date of filing of the suit till its
realisation ?
2. What order and Decree ? ...As per final order
REASONS
11. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Date Particulars
1. Exh.9 14.11.2019 Power of Attorney of the plaintiff in favour of
her son, Adil Aspi Engineer.
2. Exh.10 22.07.2014 Loan Receipt issued by the defendants to the
plaintiff.
3. Exh.11 22.10.2014 Loan Receipt issued by the defendants to the
plaintiff.
4. Exh.12 22.01.2015 Loan Receipt issued by the defendants to the
plaintiff.
5. Exh.13 22.04.2015 Loan Receipt issued by the defendants to
plaintiff.
6. Exh.14 22.07.2014 Loan Receipt issued by the defendants to
plaintiff.
7. Exh.15 22.10.2015 Loan Receipt issued by the defendants to
plaintiff.
8. Exh.16 22.01.2016 Loan Receipt issued by the defendants to
plaintiff.
9. Exh.17 22.04.2016 Loan Receipt issued by the defendants to
plaintiff.
10. Exh.18 22.07.2016 Cheque No.99358 issued by the defendants
to the plaintiff.
11. Exh.19 17.12.2019 Particulars of Claim.
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AS TO POINT NOS. 1 AND 2:
12. Plaintiff has filed evidence of PW1- Adil Aspi Engineer, son and
Constituted Attorney of the plaintiff in the form for affidavit below
Exh.7. He has stated in his evidence that the defendants had
approached the plaintiff through him, for a short term loan, to which
the plaintiff agreed and lent and advanced on 22nd July, 2014 to the
defendant No.1, a sum of Rs.20,00,000/- by cheque, which was the only
Financial Transaction which the plaintiff has had with the defendants
and the said loan was to be repaid by the defendants to the plaintiff
within 3 months i.e. on 22nd October, 2014 together with interest at the
rate of 12% per annum accrued thereon. In consideration of the said
loan amount lent and advanced by the plaintiff to the defendants, the
defendants issued a Loan Receipt dated 22nd July, 2014 duly signed by
the Authorized Signatory of the defendants recording the said loan
amount of Rs.20,00,000/- and cheque No.50721 dated 22nd October,
2014 and further recording the quantum of interest at the rate of 12%
per annum for a period of 3 months.
13. PW1- Adil Aspi Engineer has further stated that on the date of
maturity and at the request of the defendants, the said loan amount was
extended under the Loan Receipt dated 22nd October, 2014 containing
similar terms and conditions as mentioned in Item No.2. The said loan
amount of Rs.20,00,000/- was repayable by the defendant on 22nd
January, 2015.
14. PW1- Adil Aspi Engineer has further stated that again on the
date of maturity and at the request of the defendants, the said loan
amount of Rs.20,00,000/- was extended upto 22nd April, 2015 in respect
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of which the defendants executed another Loan Receipt dated 22nd
January, 2015.
15. PW1- Adil Aspi Engineer has further stated that again on the
date of maturity and at the request of the defendants, the said loan
amount of Rs.20,00,000/- was further extended upto 22nd July, 2015 in
respect of which the defendants executed another Loan Receipt dated
22nd April, 2015.
16. PW1- Adil Aspi Engineer has further stated that similarly, on the
date of maturity and at the request of the defendants, the said loan
amount of Rs.20,00,000/- was further extended upto 22nd October,
2015 in respect of which the defendants executed another Loan Receipt
dated 22nd July, 2015.
17. PW1- Adil Aspi Engineer has further stated that again on the
date of maturity and at the request of the defendants, the said loan
amount of Rs.20,00,000/- was further extended upto 22nd January,
2016 in respect of which the defendants executed another Loan Receipt
dated 22nd October, 2015.
18. PW1- Adil Aspi Engineer has further stated that again on the
date of maturity and at the request of the defendants, the said loan
amount of Rs.20,00,000/- was further extended upto 22nd April, 2016
2016 in respect of which the defendants executed another Loan Receipt
dated 22nd January, 2016.
19. PW1- Adil Aspi Engineer has further stated that again on the
date of maturity and at the request of the defendants, the said loan
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amount of Rs.20,00,000/- was further extended upto 22nd July, 2016 in
respect of which the defendants executed another Loan Receipt dated
22nd April, 2016.
20. PW1- Adil Aspi Engineer has further stated that as far as the
plaintiff’s financial transaction is concerned, the defendants failed and
neglected to repay the said loan amount together with interest accrued
thereon at the rate of 12% per annum. He has further submitted that it
is on record that on the plaintiff having lent and advanced to the
defendants, the said loan amount, the defendant No.1 used to execute
Loan Receipts from time to time in the manner as aforesaid
acknowledging thereby the total loan amount of Rs.20,00,000/- and
agreeing to pay interest thereon at the rate of 12% p.a. and at the
request of the defendants on expiry of the short term periods as stated
in the said Loan Receipts, the said loan amount was being extended on
the dates of maturity as also at the requests of the defendants from time
to time in respect of which the defendants executed several Loan
Receipts in the manner as aforesaid. He has further stated that on
expiry of the loan periods of each Loan Receipt, the defendants were
bound and liable to pay to the plaintiff the principal amount of
Rs.20,00,000/- together with interest accrued thereon at the rate of
12% p.a. from 23rd July, 2016 till payment. He has further stated that
the said loan amount advanced as above and the repayment thereof
covered under the Loan Receipts coupled with cheques handed over
from time to time to the plaintiff in repayment of the principal amount
of Rs.20,00,000/- constitutes in law a written contract for the purpose
of Order XXXVII Rule 2 of Civil Procedure Code, 1908. He has further
stated that the defendants have in terms admitted their liability under
the said Loan Receipts and issued cheques in repayment of the principal
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amount of Rs.20,00,000/- due to the plaintiff. Furthermore, at no point
of time did the defendants or any of them ever dispute or deny their
liability or their written obligations to repay the said loan amount due
to him. Obviously, the defendants have no defence whatsoever nor have
they denied their contractual obligations to repay to the plaintiff the
said loan amount with interest accrued thereon. He has further
submitted that the No.1 has duly confirmed, acknowledged, executed
and handed over to the plaintiff the said Loan Receipts and the cheques
in repayment of the loan amount of Rs.20,00,000/-. The defendant
Nos.2 to 7, in their capacity as partners of defendant No.1, are jointly
and severally liable to pay to the plaintiff the total amount claimed in
suit. In these circumstances, it is just, proper, equitable and essential
that this Court may be pleased to order and decree that the defendants
are jointly and severally liable to pay to the plaintiff the total sum of
Rs.25,70,000/- together with interest thereon accrued at the rate of
12% p.a. calculated from the expiry of the loan period of the last
renewal which has remained unpaid till the date of repayment thereof.
21. Plaintiff has produced corroborating documents which are
Power of Attorney, Loan Receipts issued by the defendants to the
plaintiff, Original Cheque issued by the defendants to the plaintiff and
particulars of claim on record as documentary evidence. Defendants
have failed to file Written Statement and take cross-examination of
witness of plaintiff. All the allegations of plaintiff has remained
unchallenged. The oral evidence of plaintiff is corroborated by
documentary evidence. Therefore, plaintiff has proved that he is
entitled to get sum of Rs.25,70,000/- from the defendants jointly and
severally.
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22. This is a Commercial Suit. From the documents produced it
appears the rate of interest fixed between the parties was 12% p.a. But
as per Section 34 of the Code of Civil Procedure 1908, considering the
prevailing Bank interest rate, it will be proper to direct defendants to
pay sum of Rs.20,00,000/- along with interest at the rate of 9% p.a.
from the date of filing of the suit till its realisation. Hence, answer point
No.1 partly in the affirmative and pass following Order:-
ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 to 7 are jointly and severally directed to pay sum
of Rs.25,70,000/- to plaintiff alongwith interest at the rate of 9%
p.a. on the sum of Rs.20,00,000/- from the date of filing of the suit
till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(SONALI P. AGARWAL)
Judge,
Date: 29.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 29.01.2020
Transcribed on : 29.01.2020
Signed on : 29.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21.02.2020 At 5:45 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. AGARWAL
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
29.01.2020
Judgment/Order signed by P.O. on 29.01.2020
Judgment/Order uploaded on 21.02.2020
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