Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010042102020
Presented On :- 22.09.2020
Registered On :- 11.11.2020
Delivered On :- 13/08/2021
Duration :- Y-00/M-10/D-22
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 438 OF 2020
Exhibit-7
Mahendra Premchandji Jain
Age 58 years of Mumbai, an adult Indian
inhabitant, residing at 46, Modi Street,
Ground Floor, Fort, Mumbai-400 001 ….Plaintiff
..Versus..
Hemant Devram Patil
Age not known
of Mumbai an adult Indian Inhabitant
working for gain with Bharat Petroleum
Lab Analyst, Mahul Village,
Chembur, Mumbai-400 074
and residing at NL-26, Room No.11, Kalpataru
Residency, Nerul (East), New Mumbai-400 706 ....Defendant
SUIT FOR RECOVERY OF Rs.76,775.34ps
Appearance:-
Adv. Mr. Ramesh Jain for the Plaintiff.
Exparte against Defendants.
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2 Sum. Suit No.438/2020
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
CITY CIVIL COURT
GR.MUMBAI,(C.R. NO.61).
DATE : 13/08/2021
J U D G M E N T
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908.
2. The facts of the suit are summarized as under :-
The plaintiff gave Rs.75,000/- to the defendant and
towards discharge of the defendant liability towards the plaintiff,
defendant drew and delivered a cheque dated 31.12.2019 for Rs.
75,000/- in favour of the plaintiff. The said cheque on being presented
to the bank has been dishonored vide memo of dishonour dated
02.01.2020 with remark “ Funds Insufficient”. The defendant failed to
pay to the plaintiff inspite of demands, reminders. The plaintiff sent
advocate letter dated 13.01.2020 and called upon the defendant to pay
the said sum of Rs.75,000/- and accrued interest. The defendant has
duly received the said letter, but failed and avoided to comply with the
requisitions thereof. Hence, plaintiff is constrained to file the suit for
recovery of the said amount. The total suit claim of the plaintiff for
Rs.76,775.34ps.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
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3 Sum. Suit No.438/2020
POINTS FINDINGS
1 What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.76,775.34ps with
interest
@ 12 % per annum on
principal amount of
Rs.75,000/- .
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to prove the case of the plaintiff filed following
documentary evidence at list Exh.6.
Sr. No. Description of documents Date
1 Cheque 31/12/2019
2 Notice of demand 13/01/2020
AS TO POINT NO.1 :-
6. The documents produced by the plaintiff at Sr.No.1 and 2
goes to establish that plaintiff has given amount of Rs.75000/-to the
defendant. The documents further prove that the amount of
Rs.76,775.34ps is due and payable to the plaintiff from defendant
towards the amount. The defendant has failed to repay the said amount
to the plaintiff. The documents at Sr.No.1 and 2 goes to establish that
the defendant is liable to pay Rs.76,775.34ps to the plaintiff on the date
of filing of the suit towards the said amount and therefore, the
defendant has failed to repay the said amount to the plaintiff. In this
background, it is held that plaintiff is entitled to recover sum of
Rs.76,775.34ps from the defendant.
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4 Sum. Suit No.438/2020
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 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 commercial one and there is no
contract existing between the parties as to the rate of interest which
shall be levied. Therefore, the transaction is a commercial one and rate
of interest @ 12% per annum would be just and proper to be awarded
on the principal sum adjudged i.e. amount of Rs.76,775.34ps. Hence,
point No.1 is answered in the affirmative.
AS TO POINT NO.2 :
8. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.76,775.34ps from the defendant
with interest on principal amount of Rs.75,000/- at the rate of 12% per
annum from the date of filing of the suit till its realization. Plaintiff is
also entitled to recover cost of the suit from defendants. Hence, in
answered to point No.2, I proceed to pass the following order.
O R D E R
1. The defendant shall pay Rs.76,775.34ps (Rs. Seventy Six
Thousand Seven Hundred Seventy Five and Thirty Four
Paise Only) to the plaintiff with interest on principal
amount of Rs.75,000/- at the rate of 12% per annum
from the date of filing of the suit till its realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :13/08/2021 (Smt. S. G. Shaikh)
Judge, City & Civil Court,
Gr. Bombay
Dictated on :13/08/2021
Typed on :13/08/2021
Signed on :
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5 Sum. Suit No.438/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/08/2021 05.00 p.m, ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13/08/2021
JUDGMENT/ORDER signed by
P.O.on
13/08/2021
JUDGMENT/ORDER uploaded on 13/08/2021
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