Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010038772020 Presented on 29-08-2020
Registered on 29-09-2020
Decided on 07-07-2023
Duration 02Yrs : 10M: 09D
Exhibit 11
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 325 OF 2020
Sanjesh Chunilal Jain, Aged--yrs. ]
of Mumbai, an adult Indian inhabitant ]
having his address at Room No.70, ]
2nd Floor, Swadheshi Market, Kalbadevi ]
Road, Mumbai - 02. ]
VERSUS
Nanda Narayan Koli ]
Age not known of Mumbai an adult ]
Indian inhabitant, residing at ]
102, Natraj Sadan HSG, Patharli Road, ]
Gograss Wadi, Dombivali- 421201. ]
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendants (
Exparte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 07/07/2023.
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JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.2,99,616.43/- along with interest thereon at the rate of 18% per
annum till its realization.
2. The plaintiff is doing business of money lending. On
9th November, 2017, for valuable consideration an amount of Rs. 2 lakh
received by defendant from the plaintiff. The defendant drew and
delivered a Promissory Note, agreeing thereby to pay the plaintiff on
demand or order.
3. The plaintiff, from time to time demanded the said amount
from the defendant. The defendant failed and neglected to pay the said
amount. Therefore, the plaintiff issued the demand notice dated
14-08-2020 through his advocate and called upon the defendant to pay
the amount, the notice returned unserved on the ground that he ‘left’
the place of his residence. The defendant failed and neglected to pay
the amount. Hence, the present suit.
4. The defendant was served with the writ of summons
through Bailiff. The plaintiff has filed affidavit of service at Exh.5.
Despite of service, the defendant has not caused his appearance and
therefore, the suit proceeded ex-parte against him by the order dated
20-02-2023.
5. In support of claim, the plaintiff filed his affidavit of claim
at Exh.6 and reiterated his contention of recovery of Rs.2,99,616.43/-
along with interest at the rate of 18% p.a. The plaintiff has filed and
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3 Sum Suit No.325/2020
relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.8 Promissory Note dated 09-11-2017
2 Exh.9 Plaintiff Advocate’s letter dated 14-08-2020
3 - Xerox copy of Money Lender Licence
4 - Xerox copy of Forms under Bombay Money Lending
Act
5 - Xerox copy of Books of Accounts
6. So to decide the present suit, following points arose for my
consideration. I have recorded my findings along with reasons on the
said point as under :-
Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled
to recover amount of
Rs.2,99,616.43/- from the
defendants?
If yes, at what rate interest?
Partly yes. Plaintiff is entitled to
recover an amount of
Rs.2,99,616.43/-from the
defendant along with interest
@ 9% p.a. from date of filing
of the suit till realization.
2. What order and decree? As per final order.
R E A S O N S
AS TO POINTS NO. 1 & 2:
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 09-11-2017. Plaintiff enjoys presumption under
Section 118(a) of Negotiable Instruments Act, 1881, which supports the
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4 Sum Suit No.325/2020
contention of plaintiff that the present promissory note was issued for
the valuable consideration of Rs.2,00,000/-.
8. The defendant has not appeared in the matter in spite of
the receipt of summons from this Court, which gives an inference that
defendant doesn’t want to contest and he does not want to dispute the
claim of the plaintiff. In view of Rule 2(3) of order XXXVII of CPC,
owing to failure of defendant to cause appearance, it needs to be
presumed that defendant admits the allegations contained in the plaint.
The Promissory Note is of 09/11/2017 and Demand Notice is of
14/08/2020. Hence, I hold an amount of Rs.2,00,000/- is due and
payable to the plaintiff from the defendant.
9. It may be seen that the plaintiff has applied the interest at
the rate of 18% p.a. on Rs.2,00,000/- from 09-11-2017 till 28-08-2020
i.e. till filing the suit and claimed decree for Rs.2,99,616.43/- and he
further prayed for the interest at the same rate on the decreetal amount.
Same is excessive as compared to rate of interest of Nationalized Banks.
Therefore, I am of the view that granting interest at the rate of Rs.9%
p.a. on the decreetal amount would be just and proper. Hence, I hold
that the plaintiff is entitled to interest at the rate of Rs.9% p.a. on
decreetal amount, 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. 325 of 2020 is hereby partly decreed with
costs.
2) The defendant shall pay an amount of 2,99,616.43/- to the
plaintiff alongwith interest at the rate of Rs.9% p.a. from 29-08-2020,
the date of filing of suit till its full realization.
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3) The plaintiff is entitled to get refund 2/3rd court-fees paid by
him.
4) Decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 07-07-2023 Court Room No.61
Mumbai.
Dictated on : 07-07-2023
Corrected & signed on: 10-07-2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10-07-2023 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07-07-2023
JUDGMENT/ORDER signed by P. O. on 10-07-2023
JUDGMENT/ORDER uploaded on 10-07-2023
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