Order 1

Order Details: Copy of Judgment
Pdf Text: ..1.. Summary Suit No.429/2018
MHCC010040782018 Presented on : 26/03/2018
Registered on : 06/04/2018
Decided on : 08/04/2024
Duration : 06Y 00M 14D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT NO.06
SUMMARY SUIT NO.429 OF 2018
(CNR NO.MHCC01-004078-2018)
Mr. Abhishek Jitendra Palrecha,
Occupation: Business, residing at 303/1,
Summer Tower, Love Lane, Mazgaon,
Mumbai – 400 010.
]
]
]
] ..Plaintiff
Versus
Silver Arch Builders and Promoters
having office address at Gordhan Building No. II,
12/14, Parekh Street, Prarthana Samaj,
Mumbai – 400 004.
]
]
]
] ..Defendants
Appearance :-
Learned Advocate Jaineel Vashi instructed by M/s. M. P. Vashi and
Associates for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 08/04/2024.
J U D G M E N T
1 This summary suit is filed for recovery of amount
contending that plaintiff has advanced friendly loan of Rs.5,00,000/-
to the defendant with interest at the rate of 12% per annum. The
amount of loan was advanced through cheque and the defendant
executed a receipt to that effect dated 14/06/2010, but defendant
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failed to pay the amount as agreed, therefore, on 31/03/2017 after
repeated request and demands, the defendant sent a letter of balance
confirmation as on 31/03/2016. As per the letter dated 31/03/2017,
the defendant has admitted balance due amount, but requested to
waive interest due to financial difficulties. The defendant failed to pay
the amount even after balance confirmation, therefore, the plaintiff
issued notice through his advocate, but in vain. Consequently, plaintiff
was constrained to file this instant suit for recovery of amount of
Rs.8,55,319/- with future interest at the rate of 12% per annum on the
loan amount of Rs.5,00,000/-.
2 The defendant in response to the writ of summons,
tendered its appearance, thereafter, the plaintiff took out summons for
judgment No.275 of 2018. The defendant resisted the contention of
the plaintiff in suit and summons for judgment, and filed reply
claiming unconditional leave to defend. The summons for judgment
was disposed and conditional leave to defend was granted on
depositing of Rs.5,00,000/- by the defendant. The defendant till date
failed to deposit the amount of Rs.5,00,000/-, therefore, plaintiff has
submitted Non-Deposit Certificate (Exhibit-03) on 08/04/2024.
3 Heard learned advocate for the plaintiff. None present for
defendant. There is nothing on record placed by the defendant to show
that it has complied the order of this Court. Therefore, due to absence
of compliance of conditional order of deposit of amount for leave to
defend, the suit was required to be proceeded further as per the
provisions of order XXXVII Rule 3(6)(b) of the Code of Civil Procedure,
Suit deserves to be decreed.
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4 It also reveals that the defendant has executed the receipt
regarding the loan received to it from the plaintiff with interest at the
rate of 12% per annum. The document of confirmation of account
dated 1/04/2015, shows that the defendant has confirmed the balance
due amount. The balance confirmation dated 01/04/2016 shows that
the defendant has confirmed the closing balance of Rs.6,83,079/-. It is
material to note that the defendant had addressed the letter to the
plaintiff dated 31/03/2017 requesting him to waive the interest on
account of financial crunch faced by the defendant Company. The
defendant has admitted the liability to pay the amount with interest,
but requested to waive the interest for the period 01/04/2016 to
31/03/2017. Thus, the letter proves that the defendant has obtained
the loan from the plaintiff and is in due of payment of the loan amount
with interest.
5 The Confirmation of Accounts dated 01/04/2017 also
shows that the defendant has confirmed the balance of Rs.6,83,079/-.
All these facts are squarely specifying that the defendant has admitted
its liability to pay the amount. The reply to summons for judgment also
shows that the defendant has denied that the plaintiff has advanced
“friendly” loan, which specifically highlighted the word “friendly” to
bring the transaction to the clutches of provisions of Maharashtra
Money-Lending (Regulation) Act. However, the contention of the
defendant denying friendly loan amounts, is implied admission that
the plaintiff has advanced loan. The question whether it was friendly
loan or loan without money lending license is to be established by
adducing evidence by the defendant, but it failed to comply the order
of summons for judgment and suit proceeded further as per the
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provisions of Order XXXVII Rule 3(6)(b) of Code of Civil Procedure.
Thus, defendant failed to establish that the plaintiff is in business of
money lending without license. The fact that the defendant has prayed
for waiver of interest itself shows that the loan was advanced with
interest. Therefore, there is admitted position appearing on record that
the defendant has obtained the loan and is in due of repayment of loan
amount with interest. Hence, suit deserved to be decreed.
6 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 12% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the Confirmation of
Accounts dated 01/04/2017, till its full realisation.
7 As the defendant has made plaintiff constrained to file the
instant suit, it is also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Suit No.429 of 2018, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.6,83,079/- alongwith interest at the rate of 9% per
annum on principal loan amount of Rs.5,00,000/-
from 01/04/2017, till its full realisation from the
defendant.
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3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
sd/-
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 08/04/2024 C.R. No.84.
Dictated and Typed on : 08/04/2024, 10/04/2024.
Draft checked on : 15/04/2024.
Signed on : 15/04/2024.
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“Certified to be true and correct copy of the original signed order”.
16/04/2024
at about 3.20 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 08/04/2024
Order signed by Hon'ble Judge on : 15/04/2024
Order uploaded on : 16/04/2024
at about 3.20 p.m.
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