Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010038762020 Presented on 29/08/2020
Registered on 28/11/2022
Decided on 22/05/2025
Duration 04Y: 08M: 24D
Exhibit 12
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 977 OF 2022
Swati Sahebrao Gadge ]
Age 29 yrs. of Mumbai an adult ]
Indian inhabitant having her address ]
at Room No. 1, Plot No.198, ]
Tulja Bhawani Society, Shivneri Nagar ]
Shingre Wadi, Bazar, Kurla (West), ]
Mumbai-400 070 through Her C.A. ]
Priya Dhuri age 27 years. ]...Plaintiff
VERSUS ]
Mustafa Dagdu Shaikh ]
age not known of Mumbai an adult ]
Indian inhabitant working for gain with ]
BMC, “ M/East” Ward, Ajij Baug, drainage ]
Chowki, Near Natraj Talkies Chembur, ]
Mumbai - 400 071, EMP NO.4040246 ]
And Residing at Dr. Jakir Hussain Nagar, ]
Virmata, Near Baiganwadi Masjid, Govandi,]
Mumbai – 400043. ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
Defendant absent (Ex-parte).
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 22/05/2025
J U D G M E N T
01] This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (C.P.C.) for recovery of Rs. 1,49,167/-
(Rs. 1,49,167.12/- rounded off as Rs. 1,49,167/-) along with interest
and prayed for further interest from defendant.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per the plaintiff, she do the business of money lending at
the address mentioned in cause title. The defendant is working as
employee on the address mentioned in the title cause. The plaintiff lent
an amount of Rs.1,00,000/- to the defendant on 02/12/2017.
Defendant has executed a Promissory Note dated 02/12/2017 and
agreed to repay said amount with interest at the rate of 18% p.a.
Further, in spite of demands and reminders, the defendant failed to pay
the said amount. Therefore, the plaintiff issued the demand notice
dated 31/07/2020 through her advocate informing the defendant of the
dishonour of the promissory note and calling upon them to pay the
amount of Rs. 1,00,000/- with interest. However, the defendant failed
and neglected to pay an amount of Rs. 1,49,167/-. The plaintiff prayed
for the decree for amount of Rs. 1,49,167/- with the further interest at
the rate of 18% p.a. on the principal amount of Rs. 1,49,167/- from the
date of filing the suit till its full realization. Hence, this suit.
03] The defendant was served with the writ of suit summons.
The plaintiff has filed affidavit of service at Exh. 2. Despite service of
the suit summons, the defendant has not caused his appearance and
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therefore, the suit proceeded ex-parte against him by the order dated
01/08/2023.
04] In support of claim, the plaintiff filed her affidavit of claim
at Exh. 3 and reiterated her contention for recovery of Rs.1,49,167/-.
along with the further interest at the rate of 18% p.a. The plaintiff close
her evidence vide Exh. 10. The plaintiff has filed and relied upon the
following documents.
Sr.
No. Exhibit No. Particulars
1 Exh. 5 Promissory Note dated 02/12/2017
2 Exh. 6 Colly Copy of demand notice dated 31/07/2020 along
with original postal receipt.
3 Exh. 7 Verified copy of money lending license.
4 Exh. 8 Verified copy of forms under Bombay Money
Lending Act.
5 Exh. 9 Verified copy of Books of accounts.
05] To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs. 1,49,167/-
from defendant ? If yes, at what
rate interest ?
Yes, entitled to interest at the
rate of 7% p.a. on Rs. 1,00,000/-
from 29/08/2020, the date of
filing of suit till its full
realization.
2. What order and decree? As per final order.
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R E A S O N S
As to points No. 1 and 2 :-
06] Perused plaint, oral and documentary evidence on record.
Heard Ld advocate for plaintiff. The plaintiff has filed her claim affidavit
at Exh. 3 in support of her contentions and reiterated contentions in the
plaint. As per the plaintiff, she is money lender. She has filed verified
copy of her Money Lending License at Exh.7 in support of his
contention. On perusing said license, it appears that plaintiff is
authorized money lender and said license is valid from 01/04/2017 to
31/03/2018.
07] Further, plaintiff to prove that she had lent an amount of
Rs. 1,00,000/- to the defendant on 02/12/2017 has filed verified copy
of Form No. 10 at Exh. 8. Further, to prove defendant has executed a
Promissory Note dated 02/12/2017, she has filed promissory note at
Exh. 5. Further, it appears from said documents that defendant had
agreed to repay said amount with interest at the rate of 18% p.a. On
perusing promissory note, it appears that it bears signature and thumb
impression of defendant. Further, defendant has borrowed loan of
Rs.1,00,000 and agreed to repay as contended by the plaintiff.
Moreover, plaintiff enjoys presumption under Section 118(a) of
Negotiable Instruments Act, 1881, which supports the contention of the
plaintiff that the present promissory note was executed for the valuable
consideration of Rs.1,00,000/-. Defendant has failed to appear and
contest the matter. Therefore, evidence of plaintiff has remained
unchallenged.
08] Plaintiff has contended that defendant dishonoured
demand promissory note. Therefore, he issued demand notice dated
31/07/2020 at Exh. 6 colly to defendant and called upon them to pay
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principal amount with interest at the rate of 18% p.a. Plaintiff has filed
original postal receipt on record to show notice is issued to the
defendant. Thus, in spite of demand notice as well as writ of summons
defendant failed to appear and contest the matter. Hence, in view of
Rule 2(3) of order XXXVII of C.P.C., owing to failure of defendant to
cause appearance, it needs to be presumed that the defendant admits
the allegations contained in the plaint. Thus, I am of the view that
plaintiff has proved that she had advanced an amount of Rs. 1,00,000/-
to the defendant and he had executed promissory note at Exh. 5 to
repay said loan with interest at the rate of 18% p.a. Further, plaintiff
has also filed verified copy of extract of account at Exh. 9 to show that
defendant is liable to pay an amount of Rs. 1,49,167/- alongwith
interest at the rate of 18% p.a. till date of filing suit.
09] So far as, further interest is concerned plaintiff has claimed
interest at the rate of 18% p.a. on the basis of promissory note.
However, I am of the view that the same is excessive as compared to
rate of interest of Nationalized Banks. Therefore, having regard to the
provision of section 34 of the Civil Procedure Code, I am of the view
that granting the further interest at the rate of 7% p.a on the principal
amount from the date of filing of suit would be just, proper and
reasonable. Hence, I hold that the plaintiff is entitled to interest at the
rate of 7% p.a. on the principal amount, from the date of filing the suit
till its full realization and hence, I answer point No. 1 accordingly. In
the result, in answer to point No. 2, I proceed to pass following order.
O R D E R
1) Summary Suit No. 977 of 2022 is hereby decreed with the costs.
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2) The defendant shall pay an amount of Rs. 1,49,167/ (Rupees One
Lakh Fourty Nine Thousand One Hundred and Sixty Seven only)
to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Rs. 1,00,000/- at the rate of 7% p.a. from 29/08/2020, the date
of filing of suit till its full realization.
4) The plaintiff is entitled to get refund of the court-fees provided
for, if any as per Rules.
5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 22/05/2025
Dictated on: 22/05/2025
Corrected & signed on: 22/05/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
23/05/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 22/05/2025
JUDGMENT/ORDER signed by P. O. on 22/05/2025
JUDGMENT/ORDER uploaded on 23/05/2025
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