Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010039082020
Presented on : 20082020
Registered on : 25012021
Decided on : 09042021
Duration : Y0 M7 M20
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO.18 OF 2021
Sapna Sunil Pawar Alias Sapna Prajapati ]
Adult, Indian Inhabitant, ]
Aged about 38 years, Residing at A 501, ]
Karma Kiran Coop Housing Society, ]
Hansoti Road, Cama Lane, ]
Ghatkopar (West), Mumbai400 086 ]...Plaintiff
V/s
1. Sajeed Rahim Shaikh ]
Adult, Indian Inhabitant Aged about 37 years, ]
residing at Room No.101, Building No.7, HIG ]
Colony, Kohinoor Society, V.B. Nagar, Kurla (W)
Mumbai400 070 ]
2. Shehnaz Ramim Shaikh ]
Agenot known ]
Adult, Indian Inhabitant residing at Room No. ]
101, Building No.7, HIG Colony, Kohinoor ]
Society, V.B. Nagar, Kurla (West) ]
Mumbai400 070 ]
3. Rahim Ali Shaikh ]
Agenot known ]
Adult, Indian Inhabitant residing at Room No. ]
101, Building No.7, HIG Colony, Kohinoor ]
Society, V.B. Nagar, Kurla (West) ]
Mumbai400 070 ]..Defendants
-- 1 of 9 --
2
APPEARANCE:
Ld. Adv. Jash Vyas for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 09th April, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree
directing the defendants to pay to the plaintiff a sum of Rs.61,20,000/
(Rupees Sixty One Lakhs Twenty Thousand Only) and further interest
on principal amount of Rs.45,00,000/ (Rupees Forty Five Lakhs Only)
at the rate of 18% per annum from the date of filing of the suit till its
realization.
2. The facts giving rise to the suit in short can be stated as
follows:
It is the case of the plaintiff that defendant No.1 in 2017
had approached the plaintiff to start new business. The plaintiff
decided the venture into the business with defendant No.1 as defendant
was known to the plaintiff. The plaintiff made investments for amount
of Rs.45,00,000/(Rupees Forty Five Lakhs Only) by way of cash. The
amount was received and confirmed by defendant No.1 along with his
brother Javed Rahim Shaikh. The defendant had issued offercum
acceptance letters, on the letterhead of company known as “SAPNA
-- 2 of 9 --
3
Safar Har Kadam Par”. The plaintiff learnt that she was cheated by
defendant No.1 as there was no progress in the business. On
confrontation with defendant No.1 he agreed to return back the amount
of Rs.45,00,000/ to the plaintiff by four cheques. The said cheques
issued are as follows:
Bank Name Cheque No. Cheque Date Amount
Axis Bank 1117458 12.08.2017 Rs.20,00,00/
Punjab National
Bank Kurla (W)
564765 15.11.2017 Rs.10,00,000/
Punjab National
Bank Kurla (W)
564764 05.12.2017 Rs.8,00,000/
Punjab National
Bank Kurla (W)
564763 21.12.2017 Rs.7,00,000/
The said cheques on depositing were not honoured. The
plaintiff made complaint with the police on 26.12.2017. The defendant
No.3 again drew a cheque of Rs.5,00,000/ on 31.03.2018. The
defendants in the meeting promised to pay back the amount of
Rs.5,00,000/ on 30.06.2018. The defendant No.1 had executed a
Memorandum of Understanding dated 27.04.2018.
3. The cheque issued by the defendant No.2 on 30.12.2018
was also dishonoured. The amount as was not returned back by
defendants, the plaintiff issued notice to defendants through her
Advocate on 11.06.2019 and called the defendants to pay amount with
interest. The notice was received by the defendants but the amount
was not repaid by defendants.
The plaintiff, therefore, had instituted the present suit for
recovery of money for Rs.61,20,000/ (Rupees Sixty One Lakhs Twenty
-- 3 of 9 --
4
Thousand Only) and further interest on principal amount of
Rs.45,00,000/ (Rupees Forty Five Lakhs Only) at the rate of 18% per
annum from the date of filing of suit till its realization.
4. The defendants had failed to appear in the suit. The suit
proceeded exparte against defendants.
5. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of amount of Rs.61,20,000/
(Rupees Sixty One Lakhs Twenty
Thousand Only) and further interest on
principal amount of Rs.45,00,000/
(Rupees Forty Five Lakhs Only) at the
rate of 18% per annum from the date of
filing of suit till its realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
6. Heard learned Advocate Jash Vyas for the plaintiff.
7. The plaintiff in support of her case had examined herself
i.e. PW No.1 Sapna Sunil Pawar @ Sapna Prajapati at Exh.04. The
plaintiff had relied upon following documents (Exh.5):
Sr.No. Particulars of Document Exh.
1 Original Partnership Agreement dated 15.08.2017 7
2 Original appointment letter dated 16.10.2017
addressed to one Javed Rahim Shaikh
8
-- 4 of 9 --
5
3 Original appointment letter dated 16.10.2017
addressed to one Rahim Ali Shaikh
9
4 Original appointment letter dated 16.10.2017
addressed to the plaintiff.
10
5 Original appointment letter dated 16.10.2017
addressed to one Atithi Devesh Mishra
11
6 Original appointment letter dated 16.10.2017
addressed to one Shekhar Vitthal Bhosle
12
7 Original Cheque No.037458 dated 12.08.2017
amounting to Rs.20,00,000/
13
colly
8 Original Cheque No.564765 dated 15.11.2017
amounting to Rs.10,00,000/
14
colly
9 Original Cheque No.564764 dated 05.12.2017
amounting to Rs.8,00,000/
15
colly
10 Original Cheque No.564763 dated 21.11.2017
amounting to Rs.7,00,000/
16
colly
11 Original Bank Memo of the cheque dated 15.11.2017
showing the reason Insufficient Funds
17
12 Original Bank Memo of the cheque dated 05.12.2017
showing the reason Insufficient Funds
18
13 Original Bank Memo of the cheque dated 21.12.2017
showing the reason Insufficient Funds
19
14 Original written police complaint dated 26.12.2017 20
15 Original cheque No.769784 dated 31.03.2018
amounting to Rs.5,00,000/
21
16 Original Memorandum of understanding dated
27.04.2018 entered into by the plaintiff and defendants
22
17 Original cheque No.100015 dated 30.11.2018
amounting to Rs.5,00,000/ alongwith the Bank Memo
showing the reason insufficient funds.
23
colly
18 Original cheque No.123725 dated 30.12.2018
amounting to Rs.5,00,00/ along with the copy of Bank
Memo showing the reason insufficient funds.
24
19 Original Legal Notice dated 11.06.2019 addressed by
Advocates for the plaintiff to the defendants.
25
20 Original Postal Receipt bearing No.RM640777165IN
dated 12.06.2019
26
colly
21 Original Postal Receipt bearing No.RM640777412IN
dated 12.06.2019
26
colly
22 Original Postal Receipt bearing No.RM640777151IN
dated 12.06.2019
26
colly
-- 5 of 9 --
6
23 Original Registered A.D. Card showing service of the
legal notice upon defendant No.1
27
colly
24 Original Registered A.D. Card showing service of the
legal notice upon defendant No.2
27
colly
25 Original Registered A.D. Card showing service of the
legal notice upon defendant No.3
27
colly
8. It is the evidence of PW No.1 Sapna Sunil Pawar @ Sapna
Prajapati that the amount of Rs.45,00,000/ was paid to the defendants
by the plaintiff to start business in the name and style of M/s. Sapna
Private Limited. The plaintiff had filed Partnership Deed dated
15.08.2017 (Exh.07). It is the evidence of PW No.1 Sapna Sunil Pawar
@ Sapna Prajapati that nothing was done further by the defendants.
On confrontation the defendants had issued four cheques for
Rs.45,00,000/. Those cheques presented with the bank were not
honoured. It is the evidence of the plaintiff that further some cheques
were issued that was not honoured. The plaintiff had made report with
the police on 26.12.2017 (Exh.20).
The plaintiff had relied upon Memorandum of
Understanding dated 27.4.2018 (Exh.22). It is in between the
defendant No.1 and the plaintiff. The Memorandum of Understanding
shows that defendant No.1 Sajeed Rahim Shaikh had defrauded the
plaintiff Sapna Sunil Pawar. It is also admitted in the Memorandum of
Understanding that defendant No.1 had no intention to start such
company. It is also reveals that the four cheques were issued by the
defendants were not honoured. The Memorandum of Understanding is
signed by the defendant No.1 and the plaintiff. The Memorandum of
Understanding is executed by the defendant No. 1. The cheques were
also issued by the defendant No.1.
The defendant No.1 admitted his liability of Rs.45,00,000/
-- 6 of 9 --
7
towards the plaintiff. Inspite of demand on several occasions by the
plaintiff the amount was not returned back by the defendants.
Therefore, the plaintiff had issued notice dated 11.06.2019 (Exh.25).
The said notice was received by the defendants but was not answered.
9. The evidence of the plaintiff is consistent with the
contentions raised by the plaintiff in the plaint. The defendants had not
appeared in the suit. The suit proceeded exparte against defendants.
The contentions raised by the plaintiff in the plaint have gone
unchallenged. The absence of the defendants in the suit and failure on
the part of the defendants to answer the notice leads to an inference
that the defendants has no say to the contentions raised by the plaintiff
in the plaint and evidence.
10. The plaintiff had successfully shown that she had given the
amount of Rs.45,00,000/(Rupees Forty Five Lakhs Only) to the
defendants for investment in the business. There is no specific evidence
to show that as to what exact date the amount was given. No business
was commenced by the defendants. There is no agreed rate of interest
for refunding the amount.
Considering that the amount was invested by the plaintiff
in the business, it would be appropriate to direct the defendants to pay
to the plaintiff the amount of Rs.45,00,000/(Rupees Forty Five Lakhs
Only). The defendants are further be directed to pay the interest at the
rate of 10% per annum from the date of issuance of first cheque by the
defendants i.e. 12.08.2017 on amount of Rs.45,00,000/ till its
realization.
I answered point No.1 “in Affirmative.” In the result,
following order is passed.
-- 7 of 9 --
8
ORDER
1. Suit is decreed with costs.
2. The defendants are directed to pay to the plaintiff the amount of
Rs.45,00,000/(Rupees Forty Five Lakhs Only). The defendants are
further directed to pay the interest at the rate of 10% per annum
from the date of issuance of first cheque by the defendants i.e.
12.08.2017 on amount of Rs.45,00,000/ (Rupees Forty Five Lakhs
Only) till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date:09.04.2021 Gr.Bombay at Mumbai.
Dictated on : 09.04.2021
Transcribed on : 22.04.2021
Signed by H.H.J.on : 26.04.2021
-- 8 of 9 --
9
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.04.2021 at 2.00 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
09.04.2021
Judgment/order signed by P.O. on 26.04.2021
Judgment/order uploaded on 28.04.2021
-- 9 of 9 --