Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :29.08.2020
Registered On :08.10.2020
Decided on :05.01.2022
Duration :Y-02/M-05/D-00
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Exhibit-09
IN
SUMMARY SUIT NO. 327 OF 2020
CNR No:-MHCC01-003875-2020
Deepak Shankar Pawar
Age- 39 years
of Mumbai an adult Indian Inhabitant
having his address at
21, Block No. 1, Jai Shankar Chowk, Halao Pul
Road, Opp. Rolex Hotel, Kurla (West),
Mumbai- 400 0070.
....Plaintiff
V/s.
Tarachand Laxman Parmar
Age not known of Mumbai, an adult Indian
inhabitant, Working for gain with Municipal
Corporation of Greater Mumbai,
P South Ward, Office Opp. City Center,
S.V. Road, Goregaon (West), Mumbai- 400 062.
Dept: Maintenance , EMP No. 3392241,
and Residing at 2nd Hanabad Lane, Jopadi no.
133, Chawl No. 1, Khar(West), Mumbai-400
052.
... Defendant
SUIT FOR RECOVERY
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
-- 1 of 7 --
Summ. Suit No.327/2020
2
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 05/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff is doing business of money lending. The
defendant approached to him for loan. Hence, on 12.8.2019, the
defendant executed a Demand Promissory Note in favour of the plaintiff
for valuable consideration being a sum of Rs.2,50,000/- received by the
defendant from the plaintiff against and on the basis of execution and
handing over of the said Demand Promissory Note. By the said demand
promissory Note the defendant promised to pay to the plaintiff said sum
of Rs.2,50,000/- alongwith interest thereon @18% p.a. on demand. The
defendant thereafter failed and neglected to repay the amount as per
the stipulation and promise given in the demand promissory note.
Hence, after waiting for sufficient time, the plaintiff issued advocate’s
letter dtd.25.8.2020 calling upon the defendant to make the repayment
of the outstanding amount. However, the defendant failed to comply
with the letter. The due and payable amount against the defendant
alongwith 18% interest is Rs.2,96,849.31ps/-. Said amount is not paid
by the defendant. Hence, plaintiff is constrained to file the suit for
-- 2 of 7 --
Summ. Suit No.327/2020
3
recovery of the said amount.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendant as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.2,96,849.31ps/-.
with interest
@ 18 % per annum on
principal amount of
Rs.2,50,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.04 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Promissory Note dated 12.8.2019
being Exhibit “A” to the plaint
Exh. 5
2 Plaintiff’s Advocates’ letter dated
25.8.2019 being Exhibit “B” to the
plaint alongwith the postal records
in connection with the
transmission and delivery thereof.
Exh.6
3 Money Lender Licence --
-- 3 of 7 --
Summ. Suit No.327/2020
4
Sr.
No.
Description of documents Exhibits
4 Forms under Bombay Money
Lending Act.
--
5 Books of Accounts --
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded under
order XXXVII of C.P.C as the same is not contested by the defendant. The
plaintiff has to establish the entitlement for the monetary relief,
undoubtedly, as per the procedure laid down in order XXXVII C.P.C,
once the suit is not contested by the defendant, the plaintiff is entitled
for the relief claimed in the suit plaint. Here, the plaintiff has produced
above referred documents including his money lending licence, which
made him entitle to lend money.
7. All the documents produced by the plaintiff with list at Exh.4
goes to establish that plaintiff has given amount of Rs.2,50,000/-to the
defendant. The documents further prove that the amount of
Rs.2,96,849.31ps/-. is due and payable to the plaintiff from defendant
towards the amount. The defendant have failed to repay the said
amount to the plaintiff. The documents with list filed at Exh.4 goes to
establish that the defendant is liable to pay Rs.2,96,849.31ps/-. to the
plaintiff on the date of filing of the suit towards the said amount. He
failed to comply with the demand letter. In this background, it is held
that plaintiff is entitled to recover sum of Rs.2,96,849.31ps/-. from the
defendant.
8. The plaintiff has claimed 18% per annum on the principal
-- 4 of 7 --
Summ. Suit No.327/2020
5
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial
and there is no contract pertaining to the same between the parties. In
the present case, the transaction is commercial one and there is
contract existing between the parties as to the rate of interest which
shall be levied. The agreed rate of interest is 18% p.a hence, I hold
that, the transaction being commercial one and the agreed rate of
interest is @ 18% per annum, said rate of interest of 18% p.a would be
just and proper to be awarded on the principal sum adjudged i.e.
amount of Rs.2,50,000/-. Hence, point No.1 is answered in the
affirmative.
AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.2,96,849.31ps/-. from the
defendant with interest on principal amount of Rs.2,50,000/- at the rate
of 18% per annum from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from defendants.
Hence, in answered to point No.2, I proceed to pass the following order.
O R D E R
1. The defendant shall pay Rs.2,96,849.31ps/-. (Rs. Two
Lakhs Ninety Six Thousand Eight Hundred Forty Nine
and Thirty One Paise Only) to the plaintiff with interest
on principal amount of Rs.2,50,000/- at the rate of 18%
per annum from the date of filing of the suit till its
realization.
2. Defendant do pay costs of the suit to the plaintiff.
-- 5 of 7 --
Summ. Suit No.327/2020
6
3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :05/01/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :05/01/2022
Typed on :10.1. 2022
Signed on : 10.1.2022
-- 6 of 7 --
Summ. Suit No.327/2020
7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.1.2022 03.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
5.1.2022
JUDGMENT/ORDER signed by
P.O.on
10.1.2022
JUDGMENT/ORDER uploaded on 10.1.2022
-- 7 of 7 --