Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010039372020 Presented on 16/12/2020
Registered on 16/12/2020
Decided on 18/03/2025
Duration 04Y/03M/02D
Exhibit 12
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 665 OF 2022
Hitesh P. Jain HUF ]
Through its Karta and Manager ]
Hitesh Phootarmal Jain, Age 40 years]
of Mumbai an adult Indian Inhabitant]
having address at C/o. Rajmani ]
Jeweller, 16/165, Sheikh Memon ]
Street, Zaveri Bazar, Mumbai 400 002]...Plaintiff
VERSUS
Jitendra C. Jain ]
Age and full name not known ]
of Mumbai an adult Indian inhabitant]
having his address at 201, Kalpataru ]
Bldg., Seth Motishah Lane, Mazgaon, ]
Mumbai – 400 010 ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
Defendant absent(Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 18/03/2025
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J U D G M E N T
(Delivered in open Court)
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. 9,47,397/-
(Rs. 9,47,397.26/- is rounded off as Rs. 9,47,397/-) along with interest
and prayed for further interest from defendants.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per the plaintiff, he is Manager and Karta of Hitesh P.
Jain HUF. Defendant is an individual and resident of Mumbai.
Defendant approached plaintiff on 08/06/2012 for financial help
therefore, plaintiff advanced an amount of Rs. 7,00,000/- by cheque
bearing No. 133773 dated 08/06/2012 drawn on Union Bank of India,
Mumbai. Defendant paid interest on said amount after deducting TDS
till 31/03/2017. Thereafter, defendant was unable to pay interest
therefore, admitted liability by way of Confirmation of account dated
01/04/2017 issued in favour of plaintiff. Further, defendant failed to
pay interest at the rate of 12% p.a therefore, plaintiff issued advocate
letter dated 30/01/2020 and called upon defendant to make payment
of outstanding amount. Plaintiff is entitled for principal amount of
Rs. 7,00,000/- and interest thereon at the rate of 12% p.a. total
amounting to Rs. 9,47,397/-. This Court has jurisdiction to try suit as
both parties are resident of Mumbai and suit is within limitation. Hence
this suit.
03] The defendant appeared in the matter. Plaintiff had filed
Summons for Judgment No. 179/2021. It came to be decided on
02/02/2023 and conditional leave was granted to defendant to defend
the suit subject to depositing an amount of Rs. 7,00,000/- within six
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weeks from the date of order. Further, after depositing said amount,
defendant was at liberty to file his written statement within four weeks.
However, it appears that neither defendant has challenged said order
nor deposited an amount of Rs. 7,00,000/-. Plaintiff has filed Non-
Deposit Certificate at Exh. 10 to show that defendant has not deposited
an amount of Rs. 7,00,000/-. Therefore, plaintiff is entitled for
judgment as per Order 37, Rule 3(6)(b) of Civil procedure Code.
04] The plaintiff has relied on compilation of documents vide
List Exh. 11.
Sr.
No. Exhibit No. Particulars
1 Exh. 11/1 Bank Pass Book of Union Bank of India in the name
of plaintiff.
2 Exh. 11/2 Original confirmation of Account by defendant
dated 01/04/2017.
3 Exh. 11/3 Office copy of notice dated 30/01/2020.
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. 9,47,397/-
from defendant ? If yes, at what
rate of interest ?
Partly yes,
Entitled for amount of Rs.
7,00,000/- and interest @ 7 %
per annum thereon from
01/04/2017 the date
admitting liability 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 and documents filed by the plaintiff. Heard
learned counsel for the plaintiff. As per the plaintiff, he had advanced
financial help to defendant an amount of Rs. 7,00,000/- on 08/06/2012
by cheque No. 133773 drawn on Bank of India. Plaintiff has filed Bank
Pass Book of Union Bank of India, Mumbai in the name of plaintiff on
record vide list Exh. 11/1 to support his contention. On perusing said
pass book, it appears that an amount of Rs. 7,00,000/- has been
credited in the account of defendant.
07] Further, as per submission of plaintiff that defendant had
agreed to pay interest at the rate of 12% p.a. on amount of
Rs. 7,00,000/- and paid it after deducting TDS till 31/03/2017. There is
nothing on record to show that defendant had agreed to repay said
amount with interest at the rate of 12% p.a. It is the contention of the
plaintiff that defendant had admitted his liability by signing
Confirmation of Account on 01/04/2017. The said Confirmation of
Account is filed on record vide list Exh. 11/2. On perusing said
Confirmation of Account, it appears that it is signed by defendant and
acknowledged liability on 01/04/2017 for sum of Rs. 7,85,167/-.
08] Plaintiff has further submitted that as defendant failed and
neglected to pay outstanding amount he issued notice dated
30/01/2020 to defendant and called upon to make payment of
outstanding amount. Plaintiff has filed office copy of said notice on
record vide list Exh. 11/3. However, there is nothing on record to show
that whether said notice is served to defendant or not, as neither AD
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card nor postal track report is filed on record. Thus, from oral
submission and documentary evidence on record, I am of the view that
plaintiff has proved that he had advanced an amount of Rs. 7,00,000/-
to defendant on 08/06/2012. Defendant has paid interest on said
amount till 31/03/2017 and further defendant has admitted liability
vide confirmation of account dated 01/04/2017. Defendant has failed
to comply order dated 02/02/2023 passed in Summons for Judgment
No. 179/2021. Even, defendant has not contended the matter therefore,
evidence of plaintiff has remained unchallenged. Therefore, plaintiff is
entitled for judgment as per Order 37, Rule 3(6)(b) of Civil Procedure
Code.
09] So far as interest on balance amount of Rs. 7,00,000/- is
concerned, plaintiff has claimed interest at the rate of 12% p.a.
Admittedly, plaintiff has not filed any contract or agreement to show
that rate of interest was agreed at the rate of 12% p.a. Plaintiff is
claiming further interest at same rate. As there is no agreement with
respect to rate of interest was agreed 12% p.a. Moreover, I am of the
view that said rate of interest is excessive with compared to rate of
interest of Nationalized bank. Therefore, it would be proper to grant
interest at the rate of 7% p.a. on Rs. 7,00,000/- in view of Section 34 of
Civil Procedure Code, from date of admitting liability i.e. 01/07/2017
till date of its realization. Hence, I answer point No. 1 in partly
affirmative and in answer to point No. 2, I proceed to pass following
order :-
O R D E R
1) Summary Suit No. 665 of 2022 is hereby partly decreed with the
costs.
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2) The defendant shall pay an amount of Rs. 7,00,000/- (Rupees
Seven Lakhs only) to the plaintiff with interest at the rate of 7%
p.a. from 01/04/2017 the date of admitting liability till its full
realization.
3) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
4) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Date: 18/03/2025 Court Room No.81.
Dictated on: 18/03/2025
Corrected & signed on: 19/03/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
26/03/2025 Mrs. Rupali S. Bhor
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
18/03/2025
JUDGMENT/ORDER signed by P. O. on 19/03/2025
JUDGMENT/ORDER uploaded on 26/03/2025
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