Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: Suit No.11932018 Exparte Judgment 1
Lodged on : 20.03.2018
Registered on : 14.04.2018
Decided on : 20.04.2022
Duration : 04Y 00M 06D
Exhibit
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1193 OF 2018
(CNR NO.MHCC010038142018)
Mishrimal Chunnilal Jain, aged 72 yrs.,
Occ:Business, having address at
Poonawala Hirvi Chawl, G.K.Marg,
Lower Parel West, Mumbai13
Through his constituted attorney,
Girish Ramchandra Jain … Plaintiff
Vs.
1. M/s. Arihant Jewellers, a Partnership Firm,
having address at Shop No.22, Kohinoor Arcade,
Opp. Bus Stop, Pune400044 (Maharashtra)
2. Kaushal Bhawarlal Jain, Age not known, Partner
of M/s.Arihant Jewellers, having address at Shop
No.22, Kohinoor Arcade, Opp. Bus Stop, Pune
400044 (Maharashtra)
3. Bhawarlal Tarachand Jain, Age not known,
Partner of M/s.Arihant Jewellers, having address at
Shop No.22, Kohinoor Arcade, Opp. Bus Stop,
Pune400044 (Maharashtra) ...Defendants
Appearances:
Ld.Adv.Mr.Yashpal Jain for plaintiff.
None for Defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 20th April, 2022
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Suit No.11932018 Exparte Judgment 2
EXPARTE JUDGMENT
1. This is a suit for recovery of principal amount of Rs.3,32,369/
and interest from 25/9/2016 till filing of the suit is of Rs.83,433/, total
amount of Rs.4,15,802/.
2. Brief facts of the plaint are as under:
Plaintiff is resident of Mumbai. Defendant no.1 is partnership
firm. The defendant no.2 and 3 are the partners. The defendants are
carrying on business in the cited address that is at Pune. In March
April,2014 the defendant no.2 and 3 approached to the plaintiff. They
requested that they are in need of some finance assistance for expansion
of their business. Accordingly, the plaintiff has given them financial
assistance by way of loan at the rate of Rs.12%p.a. At that time the
plaintiff has advanced Rs.9,00,000/ by RTGS to the defendants. Since
beginning the defendants were irregular in payment of interest. In the
year 2018 the defendants have made some lumpsum payment of
Rs.4,55,000/ the said amount was appropriated towards principal as
well as interest amount. Accordingly, thereafter Rs.5,61,479/ was due
against defendants. Again in the year 2016 defendants have made part
payment of Rs.3,00,000/. The said amount is also appropriated
towards principal plus interest and lastly after 2016, Rs.3,32,369/
principal amount and interest of Rs.41,909/ was due. Thereafter, from
time to time the plaintiff has made demand but no use. Lastly on
24/11/2017 demand notice was issued, in the said notice the plaintiff
has demanded total amount of Rs.4,03,318/ with interest. The notice is
duly served to defendants but they failed to pay amount. The plaintiff
further submitted that the plaintiff is resident of Mumbai, monies were
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Suit No.11932018 Exparte Judgment 3
lent from Bank at Mumbai. Therefore, this Court has jurisdiction to try
the suit. Hence, this is a suit for recovery.
3. Roznama dated 21/1/2019 disclosed that inspite of service of
summons the defendants failed to appear on record, therefore suit is
proceeded exparte against them.
4. Heard learned advocate for plaintiff. From documents and
pleadings following points arise for consideration to which I have given
reasons before them:
Sr.No. POINTS FINDINGS
1 Does plaintiff prove that amount of
Rs.3,32,367/, the principal amount is
due against defendants ? In the affirmative
2. Is plaintiff entitled for 12%p.a. interest
on due amount ? As per final order
3. Does plaintiff prove that the defendant
nos.1 to 3 are jointly and severally liable
to reply the amount ? In the affirmative
4. What order and decree ? Suit is decreed
REASONS
AS TO POINT NO. 1 TO 3
5. Heard learned advocate for plaintiff, it is the submission of
plaintiff that in the year 2014 the defendants approached to him and
demanded financial assistance. As per statement of the plaintiff the
defendant no.2 and 3 disclosed as partner of defendant no.1. They have
demanded financial assistance for expansion of their business.
Accordingly by RTGS the plaintiff has made payment to them. In
support the plaintiff has filed Affidavit of evidence of the witnesses
Girish Jain. Witness has reiterated all the facts as per contents of the
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Suit No.11932018 Exparte Judgment 4
plaint. Plaintiff has also filed original passbook of The Kunbi Sahakari
Bank, Limited, Lower Parel Branch, Mumbai. From that passbook, it
appears that by RTGS time to time the plaintiff has transferred amount
to Arihant Jewellers. Arihant Jewellers is partnership firm of defendant
no.1. Plaintiff has made statement on oath that defendant no.2 and 3
are the partners of defendant no.1. Defendant no.2 and 3 were looking
after all affairs of defendant no.1.
6. As per statement of the plaintiff in the year 2015 and in the year
2016 the defendants have made part payment of Rs.4,55,000/, and
Rs.3,00,000/ respectively. Said amount is adjusted towards principal as
well as interest and lastly plaintiff has shown principal amount
Rs.3,32,367/ is due against defendants. The plaintiff has produced
copy of notice dated 24/11/2017 alongwith acknowledgment card
which is returned with unclaimed endorsement. Suit summons are also
returned unclaimed. As per General Clauses Act, unclaimed envelope
can be said as due service. It means inspite of service of summons as
well as notice before filing of the suit, the defendants failed to appear
on record and failed to challenge oral as well as documentary evidence
of the plaintiff.
7. As per statement of the plaintiff, the defendant no.2 and 3 are
responsible for the affairs of defendant no.1. Accordingly all the
defendants are jointly and severally liable to repay amount given by
plaintiff. The plaintiff has claimed 12% p.a. interest on due amount. As
per statement of plaintiff, the amount paid by defendants has been
appropriated towards principal amount with 12% p.a. interest. Now,
also plaintiff has requested 12%p.a. interest. But there is no any
documents, which shows agreed interest rate between the parties. The
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Suit No.11932018 Exparte Judgment 5
plaintiff proved that an amount that is loan amount of Rs.9,00,000/
given to defendants. But interest rate was not agreed. Therefore, the
plaintiff is entitled only for interest on any nationalised Bank, prevailant
in the year 2018 that is the year of filing of suit. The plantiff has filed
particulars of claim, in the said particulars of claim dated 16/3/2018
the plantiff has shown Rs.3,32,367/ principal amount. Therefore, the
plaintiff is entitled for principal amount of Rs.3,32,367/ plus interest
thereon from 25/9/2016 till realisation of the amount as per interest
rate of any nationlised Bank prevailant in the year 2018. Accordingly, I
answer points no.1 and 3 in affirmative, point no.2 as per final order
and proceed to pass following order :
ORDER
1. Suit is decreed with costs.
2. Defendant nos.1 to 3 do jointly and severally pay to the
plaintiff an amount Rs.3,32,367/(Rs. Three Lacs Thirty
Two Thousand Three Hundred and Sixty Seven) alongwith
interest at the rate of any nationalized Bank prevailent in
the year 2018, from the date of suit till realisation of
amount within 6 months from the date of this order.
3. Decree be drawn up accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 20/04/2022 City Civil Court, Gr. Bombay
Dictated on : 20/04/2022,
Transcribed on : 21/04/2022,
HHJ signed on :22/04/2022
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Suit No.11932018 Exparte Judgment 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
22/04/2022 5.45p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
20/04/2022
JUDGEMENT /ORDER signed by P.O. on 22/04/2022
JUDGEMENT /ORDER uploaded on 22/04/2022
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