Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010040932020 Presented on 15-09-2020
Registered on 05-01-2021
Decided on 02-08-2023
Duration 02Y: 10M:18D
Exhibit 11
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 03 OF 2021
Kranti Amol Narkar ]
Age year, Mumbai an adult ]
Indian Inhabitant having her ]
address at 9/10/10, Swami ]
Vivekanand Nagar, Dr. E Moses ]
Road, Worli, Mumbai-18 ]...Plaintiff
Versus
Bhagwanji Phoolchand Shah ]
Age and full name not known ]
of Mumbai an adult Indian ]
Inhabitant having address at ]
Mata Sadan Yadav Chawl, ]
Chawl No.2, Room no.10, ]
Shivtekdi, Bhola Yadav Chawl, ]
Jogeshwari, Mumbai-60. ]...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (
Ex-parte).
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2 Sum Suit No.03/2021
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 02-08-2023
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.1,21,895.89ps. Brief facts of the plaintiff’s case may be
summarized as under:
2. The plaintiff is doing business of money lending. On
20th June, 2019, for valuable consideration of an amount of
Rs.1,00,000/- lakh received by the defendant from the plaintiff. The
defendant drew and delivered a Promissory Note, agreeing thereby to
pay to the plaintiff the amount of Rs.1,00,000/- on demand.
3. The plaintiff, from time to time demanded the said
amount to the defendant. The defendant failed and neglected to pay
the said amount. Therefore, the plaintiff issued the demand notice
dated 18-02-2020 through his advocate and called upon the defendant
to pay the amount. The defendant received the said notice, but he
failed to reply the notice, and even neglected to pay the amount.
Hence, the present suit.
4. The defendant was served with the writ of summons
through Bailiff. The plaintiff has filed affidavit of service at Exh.5.
Despite service, the defendant has not caused his appearance and
therefore, the suit proceeded ex-parte against him by the order dated
06-08-2022.
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3 Sum Suit No.03/2021
5. In support of claim, the plaintiff filed her affidavit of
claim of her power of attorney Mr. Amol Vijay Narkar at Exh.6 and
reiterated her contention of recovery of Rs.1,21,895.89ps. along with
further interest at the rate of 18% p.a. on Rs.1,00,000/-. The plaintiff
has filed and relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.8 Promissory Note dated 20-06-2019
2 Exh.9 Plaintiff Advocate’s letter dated 18-02-2020
3 Exh.10 Money Lender Licence
4 - Power of attorney of Amol Vijay Narkar
6. To decide the present suit, following points arose for my
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.1,21,895.89ps
from the defendant?
If yes, at what rate interest?
Yes. Entitled to interest @
Rs.9% p.a. on Rs.1 lakh
from the date of filing the
suit.
2. What order and decree? As per final order.
R E A S O N S
As to points No.1 & 2:
7. The plaintiff has filed claim affidavit of her power of
attorney Mr. Amol Vijay Narkar in support of his contention of receipt
of promissory note for consideration of Rs.1,00,000/-. His oral
testimony is supported by the original promissory note dated
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4 Sum Suit No.03/2021
20-06-2019. The plaintiff enjoys presumption under Section 118(a) of
Negotiable Instruments Act, 1881, which supports the contention of
plaintiff that the present promissory note was issued for the valuable
consideration of Rs.1,00,000/-.
8. The defendant has not appeared in the matter in spite of
the receipt of summons from this Court, which gives an inference that
defendant doesn’t want to contest and he does not want to dispute the
claim of the plaintiff. In view of Rule 2(3) of order XXXVII of CPC,
owing to failure of defendant to cause appearance, it needs to be
presumed that defendant admits the allegations contained in the
plaint. The Promissory Note is of dated 20-06-2019 and the demand
notice is of dated 18-02-2020. Therefore, on the aforesaid background
and having regard to the unrebutted and unchallanged evidence of
plaintiff’s witness, I hold an amount of Rs.1,00,000/- is due and
payable to the plaintiff from the defendant.
9. It may be seen that the plaintiff has applied the interest
Rs.21,895.89 at the rate of 18% p.a. on principal amount of
Rs.1,00,000/- from 20-06-2019 i.e. till filing of the suit and claimed
decree for Rs.1,21,895.89 ps. and she further prayed for the interest at
the same rate on the principal amount. As the rate of interest
@ Rs.18% was the agreed, I am of the view that the plaintiff is entitled
to the interest amount Rs.21,895.89, which is applied by the plaintiff
till filing the suit. However, I am of the view that it would just and
proper to grant the interest @ Rs.9% p.a. from the date of filing the
suit till its full realization. Hence, I hold that the plaintiff is entitled to
interest at the rate of Rs.9% p.a. on principal amount from
15-09-2020, the date of filing the suit till its full realization and hence,
I answer point No.1 accordingly. In the result, in an answer to point
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5 Sum Suit No.03/2021
No.2, I proceed to pass following order.
O R D E R
1) Summary Suit No. 03 of 2021 is hereby decreed with costs.
2) The defendant shall pay an amount of Rs.1,21,895.89 (Rupees
One Lakh, Twenty One Thousand, Eight Hundred Ninety Five
and Eighty Nine paise only) to the plaintiff.
3) The defendant shall pay to the plaintiff the interest at the rate of
Rs.9% p.a. on Rs. 1,00,000/- (Rupees One lakh) from
15-09-2020, the date of filing of suit till its full realization.
4) The plaintiff is entitled to get refund 2/3rd of the court-fees
paid by her.
5) Decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 02-08-2023 Court Room No.61
Mumbai.
Dictated directly on : 02-08-2023
Corrected & signed on: 03-08-2023
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6 Sum Suit No.03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-08-2023 at 12.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
02-08-2023
JUDGMENT/ORDER signed by P. O. on 03-08-2023
JUDGMENT/ORDER uploaded on 04-08-2023
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