Final Order 1

Order Details: Copy of Judgment
Pdf Text: Filed on :09.09.2020
Registered On :21.10.2020
Decided on :13.12.2021
Duration : Y-01/M-03/D-05
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 373 OF 2020
Exhibit- 11
CNR NO.- MHCC01-004020-2020
Gopal Kanayalal Talreja
Adult, Indian Inhabitant
of Bombay, Aged 61 years,
the Karta and Manager of
Gopal K. Talreja HUF,
carrying on business at 34,
Dariya Mahal-A, 80, Nepeansea Road,
Mumbai- 400 006.
... Plaintiff
V/s.
1. XPRO IT INNOVATIONS PVT. LTD.,
a company Registered under the
Companies Act, 1956, carrying on
business at Gala No. 116,1st Floor,
Niraj Ind. Estate, Opp. Sun Pharma,
Paper Box Lane, Off. Mahakali Caves Road,
Andheri(E), Mumbai- 400 093.
And at:-
901, Sugee Heights, Dwarkesh Nagar,
Nahur Road, Opp. St. Plus School,
Mulund(W),Mumbai- 400 080.
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2. Jatin Vinaykumar Shah,
Adult, Indian Inhabitant of Bombay,
Age not known. Residing and carrying on
business at 901, Sugee Heights,
Dwarkesh Nagar, Nahur Road,
Opp. St. Plus School, Mulund(W),
Mumbai- 400 080.
3.Bhavini Jatin Shah,
Adult, Indian Inhabitant of Bombay,
Age not known. Residing and carrying on
business at 901, Sugee Heights,
Dwarkesh Nagar, Nahur Road,
Opp. St. Plus School, Mulund(W),
Mumbai- 400 080.
4. Pradeepkumar Chandrashekhar Pandey,
Adult, Indian Inhabitant of Bombay,
Age not known. Residing and carrying on
business at Building No. 13, CR No. 2, Plot
No.5, Goregaon (East), Mumbai -400 065.
And also carrying on business at the address of
Defendant no.1 . ... Defendants
Appearance:-
Ms. Kavita Lalwani Advocate for the plaintiff.
Exparte against Defendants.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 13/12/2021
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under order
XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is the Karta and Manager of Gopal K. Talreja HUF,
carrying on business at the address given in the suit plaint. Defendant
no.1 is a Company registered under the Indian’s Companies Act, 1956
and defendant no.2 to 4 are the persons carrying on the business of
defendant no.1. The defendants approached to the plaintiff and the
defendant no.1 on dtd.23.11.2017 for valuable consideration of
Rs.2,00,000/- received from plaintiff, drew a bill of exchange directing
thereby, defendant no.2 to 4 to pay to the plaintiff or Order at Mumbai
a sum of Rs.2,00,000/- on demand. Said bill of exchange was accepted
and delivered by defendant no.2 to 4 to the plaintiff on the same day.
The amount of Rs.2,00,000/- was advanced to the defendants by
cheque dtd. 23.11.2017 bearing No.066615 of Rs.2,00,000/- drawn on
Union Bank of India, Pedder Road, Mumbai. Accordingly, the
defendants executed the bills of exchange in favour of plaintiff. They
repaid the sum of Rs.1,00,004 /- to the plaintiff as per the details given
in the suit plaint and handed over the cheques for Rs.99,996/- as part
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payment towards the balance sum. Said cheques were presented in
bank for honour as per the instructions given by the defendants but the
same got dishonored. The plaintiff thereafter presented demand bill of
exchange to the defendant no.1 for payment of balance sum of
Rs.99,996/-. The defendants dishonored the demand of bill of exchange
by non payment. Therefore, the defendants are jointly and severally
liable to pay the balance sum of Rs.99,996/- alongwith interest at the
rate of 18% p.a. The plaintiff issued letter/notice through advocate on
13.8.2019 and 4.12.2019 to the defendants calling upon them to pay
the outstanding amount alongwith accrued interest but the defendants
failed to comply with said requisition. The plaintiff averred that the
defendants are liable jointly and severally to pay the outstanding
amount of Rs.1,28,494/- as per the Memo of Particulars.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.1,28,494/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a
from the date of suit till its realization. Hence, this suit.
4. The suit summons were duly served on the defendant nos.
1 to 3. The defendants no.1 to 3 failed to appear though served with
the suit summons. The defendant no.4 remained unserved. The plaintiff
tendered application below Exh.07 with the submission that defendant
nos. 1 to 3 are duly served hence, sut be proceeded ex-partee against
them. It is further submitted that the permission may be granted to
withdraw the suit against the defendant no.4. Said application came to
be allowed. Hence, suit is posted for judgment as per order XXXVII Rule
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2(3) of Code of Civil Procedure 1908 judgment against defendant nos.
1 to 3 and withdrawn against defendant no.4.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendant nos. 1 to 3?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,28,494/- with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.09 and 10 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Demand Bill of Exchange dated
23.11.2017 of Rs.2,00,000/-
Exh. 9/1
2 Copy of Plaintiff’s Advocate’s letter
dated 13.08.2019 alongwith
Acknowledgment.
Exh. 9/2
3 Copy of plaintiff’s Advocate’s letter
dated 4.12.2019 alongwith
Acknowledgment.
Exh. 9/3
4 Plaintiff’s Advocate’s original copy
of Letter dtd.4.12.2019 alongwith
acknowledgment.
Exh. 10/1
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AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.2,00,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.2 to 4
to pay to the plaintiff or order a sum of Rs.2,00,000/- on demand and
said bill of exchange has been accepted and delivered by the defendant
no.2 to 4 to the plaintiff. Further, it reveals from the record that said
transaction took place on dtd.23.11.2017, the notice/letter of demand
was issued to the defendants on dtd. 13.8.2019 and 4.12.2019 and the
suit is filed on 09.09.2020. As such, the plaintiff’s claim in the suit is
well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
09 and 10 goes to establish that plaintiff has given amount of
Rs.2,00,000/- to the defendants on bill of exchange. The defendants
repaid the amount of Rs.1,00,004/-. The remaining dues against the
defendants are Rs.99,996/-. The plaintiff is claiming Rs.1,28,494/-
which is the amount calculated with interest at the rate of 18% p.m till
the date of filing of the suit. Said amount is not repaid by any of the
defendants. The suit is withdrawn against the defendant no.4.
Therefore, defendant nos. 1 to 3 are liable jointly and severally to pay
the outstanding amount of Rs.1,28,494/- to the plaintiff. In this
background, I have arrived at the conclusion that the plaintiff is entitled
to recover sum of Rs.1,28,494/- from the defendants jointly and
severally.
9. According to the plaintiff the outstanding dues against the
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defendants is Rs.1,28,494/- and said amount is calculated alongwith
with interest at the rate of 18% p.m till the filing of the suit. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 18% per annum
on the principal amount. As per section 34 of the Code of Civil
Procedure the rate of interest may exceed 6% per annum, if the
transaction is commercial and there is no contract pertaining to the
same between the parties. In the present case the transaction is a
commercial one and there is contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
defendant is liable to pay the interest at the rate of 18% p.a. Therefore,
I hold, the rate of interest at the rate of 18% per annum would be just
and proper to be awarded on the principal sum of Rs.99,996/- . Hence,
point no.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,28,494/- from the defendant
nos. 1 to 3 jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.99,996/- from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendant nos. 1 to 3. Hence, in answered to point no.2, I
proceed to pass the following order.
ORDER
1. The defendant nos.1 to 3 shall pay Rs.1,28,494/- (Rs.
One Lakh Twenty Eight Thousand Four Hundred
Ninety Four Only) to the plaintiff jointly and severally,
with interest at the rate of 18% per annum on the
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principal sum of Rs.99,996/- from the date of filing of
the suit till its realization.
2. The defendant nos. 1 to 3 do pay costs of the suit to
the plaintiff.
3. Suit is withdrawn and disposed of against the
defendant no.4.
4. Court fee, if any, be refunded as per the rules.
5. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 13/12/2021 Gr. Bombay
Dictated on : 13/12/2021
Typed on : 13/12/2021
Signed on : 13/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/12/2021 2.00p .m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13/12/2021
JUDGMENT/ORDER signed by
P.O.on
13/12/2021
JUDGMENT/ORDER uploaded on 13/12/2021
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