Final Order 1

Order Details: Copy of Judgment
Pdf Text: Sum. Suit No.664/2023 -: 1 :- Judgement
MHCC010039982020
Presented on : 07092020
Registered on : 14122020
Decided on : 02042024
Duration : YY:MM:DD
03 : 06 : 26
IN THE BOMBAY CITY CIVIL COURT, MAZGAON AT BOMBAY
SUMMARY SUIT NO. 664 OF 2023
(OLD SUMMARY SUIT NO.534 OF 2020)
EXHIBIT NO.35
Mrs. Mayuri Vivek Thakkar
Age about 33 Years, Occupation: Housewife,
Residing at: Flat No. 9, Gautam Building,
Tilak Road, Ghatkopar East, Mumbai
400077.
... Plaintiff.
V/s
Dhaval Anand Shah,
Age about 41 years, Occupation: Business.
Residing at: 1401, Deepak Building, R. B.
Mehta Road, Ghatkopar East, Mumbai
400077.
... Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(INCHARGE OF COURT ROOM NO.83)
DATE : 02nd DAY OF APRIL 2024
: Appearances:
Ld. Adv. Vijay Waghela a/w. Adv. Sujata Natekar for the plaintiff.
Ld. Adv. Vijay Sharma for defendant absent.
JUDGMENT
The plaintiff has filed the present Summary suit for recovery of
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Sum. Suit No.664/2023 -: 2 :- Judgement
sum of Rs.6,45,000/ with further interest @ 12% per annum on
principal amount of Rs.5 Lakhs from the 01th September 2020 till its full
realization.
Initially the plaintiff has filed Summary Suit No.534 of 2020
against the defendant for recovery of amount. However, as per office
order dated 06.04.2021, the suit is converted to Commercial Suit
No.861 of 2021. Thereafter, as per order dated 03.08.2023 passed by
my Ld. Predecessorincourt the suit is again registered as Summary
Suit.
2. Briefly stated facts of the case are as under:
The defendant is Principal Officer, Director and incharge of his
company ‘Apex Consumer Appliance Private Limited’. The plaintiff had
given friendly Loan of Rs.5 Lakhs on 25.06.2014 vide cheque
No.100043 of Jankalyan Sahakari Bank Ltd., of her husband saving
bank account to the defendant. The defendant agreed to pay interest
@12% per annum on quarterly basis.
3. The defendant paid interest of Rs.46,027/ as on 25.03.2015 and
paid last interest on 17.05.2019 of Rs.15,000/ upto 31.03.2018.
4. The defendant gave the confirmation of account by email dated
10.05.2017 and accordingly confirmed that Rs.5 Lakhs are due and
payable by him to the plaintiff. The defendant again gave the
confirmation of account by email dated 13.06.2017 and accordingly
confirmed that Rs.5,30,000/ are due and payable by him to the
plaintiff. The defendant gave the confirmation of account by email
dated 08.05.2019 and accordingly confirmed that Rs.5,75,000/ are due
and payable by him to the plaintiff.
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Sum. Suit No.664/2023 -: 3 :- Judgement
5. The defendant paid last interest on 17.05.2019 of Rs.15,000/
due and payable upto 31.03.2018 and gave confirmation of account on
08.05.2019. As the defendant failed to pay the outstanding amount,
hence the plaintiff through her advocate issued notice on 03.07.2020.
Despite of receiving notice, the defendant failed to clear outstanding
amount. Hence, the suit.
6. After appearance of the defendant, the plaintiff has taken out
Summons for Judgment No.10 of 2021. My Ld. Predecessorincourt
vide order dated 06.09.2022 had granted conditional leave to defend to
the defendant upon depositing Rs.5 Lakhs within 30 days. However, the
defendant failed to comply with the order.
7. The plaintiff has filed affidavit of evidence of PW1, Mrs. Mayuri
Vivek Thakkar at Exh.16 and of PW2, Mr. Vivek Balwantrao Thakkar at
Exh.31. The plaintiff relied on various documents at Exh.21 to Exh.30
respectively.
8. The Ld. Advocate for plaintiff filed nondepositor certificate
(Exh.33) on 16.03.2024.
9. Heard the Ld. Advocate for the plaintiff. He filed written notes of
arguments at Exh.34. Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows:
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Sum. Suit No.664/2023 -: 4 :- Judgement
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of amount of Rs.6,45,000/
with further interest @ 12% per annum
on principal amount of Rs.5 Lakhs from
the 01th September 2020 till its full
realization, as claimed?
Yes.
2. What Order and Decree? As per final
order.
REASONS
As to Point No.1:
11. The plaintiff has filed affidavit of claim PW1 Mrs. Mayuri and
PW2 Mr. Vivek. They stated as per the contents of the plaint
averments; hence I do not want to reproduce the same to avoid the
repetition. To substantiate her claim the plaintiff has filed documents
such as; Original bank certificate dated. 29.08.2020 attached with
defendant's honoured cheque photocopy of Rs.15,000/ in favour of
plaintiff, honoured on 17.05.2019 (Exh.21); Two balance confirmation
dated 01.04.2015 of the defendant to plaintiff (Exh.22); Defendant's
confirmation of accounts emailed on 10.05.2017 with four attachments
(Exh.23 ); Defendants confirmation of accounts emailed on 13.06.2017
with four attachments (Exh.24); Defendant's confirmation of accounts
emailed on 08.05.2019 with five attachments (Exh.25); Ledger account
of the deft in the books of the plaintiff for ledger account from
01.04.2012 till 30.06.2020 (Exh.26); Copy of demand letter of
plaintiff's advocate Vijay Vaghela dated 02.07.2020 (Exh.27); Copy of
postal receipt dated 03.07.2020 (Exh.28); Postal acknowledgement
card of service demand notice upon the defendant (Exh.29) and
Certificate under section 65B of Evidence (Exh.30).
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Sum. Suit No.664/2023 -: 5 :- Judgement
12. Herein it is to be noted that, the plaintiff has taken out summons
for judgement No.10 of 2021. My Ld. PredecessorinCourt while
deciding it on merit granted conditional leave to defend the suit to
defendant, but subject to condition of depositing principal amount of
Rs.5 Lakhs within 30 days from the date of order. Upon depositing said
amount within specified period, permission to file written statement is
granted to defendant within 30 days from the date of deposit. However,
the defendant failed to deposit the amount. The plaintiff filed non
depositor certificate Exh.33.
13. In view of Order 37 Rule 3 (6) (B) of the Code of Civil
Procedure, “if the defendant is permitted to defend as to the whole or any
part of the claim, the court or judge may direct him to give such security
within such time as may be fixed by the Court of Judge and that, on
failure to give such security within time specified by the Court or Judge or
to carry out such other direction as may have been given by the court or
Judge, the plaintiff shall be entitled to Judgment forthwith”. As discussed
supra, in spite of giving conditional leave to defend, the defendant
failed to comply with the order dated 06.09.2022. Therefore, on the
basis of pleadings, oral and documentary evidence the plaintiff duly
proved her claim. Hence, my answer to point no.1 is affirmative.
AS to Point No.2.
14. In view of my above discussion, I pass the following order;
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Sum. Suit No.664/2023 -: 6 :- Judgement
ORDER
1. Summary Suit No.664 of 2023 is Decreed with Cost.
2. The defendant does pay Rs.6,45,000/ with further interest @ 12%
per annum on principal amount of Rs.5 Lakhs from the 01th September
2020 till its full realization
3. Decree be drawn up accordingly.
4. Summary Suit No.664 of 2023 disposed of.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:02.04.2024 Mazgaon, Gr. Mumbai
(Incharge of C. R. No.83.)
Dictated on : 02.04.2024
Transcribed on : 02.04.2024
Signed on : 02.04.2024
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Sum. Suit No.664/2023 -: 7 :- Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 03.04.2024 NAME OF STENOGRAPHER
TIME: 05.14 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. Virendra D. Kedar
(InCharge of Court Room No.83)
Date of Pronouncement of
JUDGEMENT/ORDER
02.04.2024
JUDGMENT/ORDER signed by
P.O. on
02.04.2024
JUDGEMENT/ORDER uploaded on 03.04.2024
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