Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: (Judgment) 1 Summary Civil Suit No.568 of2019
Received on : 12.04.2019
Registered on : 04.06.2019
Decided on : 20.11.2019
Duration : 0Y.05M.16D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.568 OF 2019
(CNR NO. MH CC010042322019)
Exhibit11
Chandrakant C.Jain.
Age.: 66 years, Indian Inhabitant,
Residing at 60, Dr. A.M. Road,
Purshottam Bhavan, 2nd Floor,
Bhuleshwar, Mumbai 02. ….Plaintiff
..Versus..
1] Aplesh Devang Academy,
A Partnership Company,
Commerce Classes,
Ground Floor, Sagar Apartment,
Old Nagardas Road,
Andheri (E), Mumbai – 69.
2] Alpesh Shah,
Adult, Indian Inhabitant,
Partner of M/s. Alpesh Devang Academy,
Commerce Classes,
Ground Floor, Sagar Apartment,
Old Nagardas Road,
Andheri (East), Mumbai – 69. ...Defendants
SUIT FOR RECOVERY OF Rs.2,00,000/
Appearance:
Mr.Shettey, Advocate for the Plaintiff.
Exparte against Defendant.
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(Judgment) 2 Summary Civil Suit No.568 of2019
CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59)
DATE : 25 th November,2019
: 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 was acquitted with the defendant no. 1 & 2.
The defendant no.2 approached plaintiff on behalf of defendant no.1 and
had requested that defendant no.2 was partner of defendant no.1 and
defendant no.2 was involved in day to day affairs of defendant no.1 and
also incharge and responsible for the conduct of defendant no.1. The
defendant no.2 requested plaintiff to give financial help for defendant
no.1 business. Therefore, plaintiff considering difficulty and cordial
relations with defendant no.2 gave amount of Rs.2,00,000/ by cash on
22.04.2016 and same was received by defendant no.2 on behalf of
defendant no.1 had signed and executed Bill of Exchange dated
22.04.2016 in favour of plaintiff. Inspite of various requests made by the
plaintiff and receipt of the legal notice, defendant no.2 has failed to repay
the said amount. Hence, plaintiff is constrained to file the suit for
recovery of the said amount. The total suit claim of the plaintiff for
Rs.2,00,000/.
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(Judgment) 3 Summary Civil Suit No.568 of2019
3. The suit summons were duly served on the defendants No.1
and 2 but they 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 :
POINTS FINDINGS
1 What is due and payable from the
defendants to the plaintiff ?
A] If yes, what would be the rate of
interest?
Yes
at the rate of 10 % per
annum.
2 What order and decree? As per final order.
R E A S O N S
5. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of documents Date
Exhibit8 Original Bill of Exchange 22.04.2019
Exhibit9 Notice of plaintiff 05.09.2019
Exhibit10
(collectively)
Two R.P.A.D. packets with
Postal receipts.
07/09/2019 and
05/09/2019
respectively.
AS TO POINT NO.1 :
6. All the documents produced by the plaintiff at Exhibit8, 9
and 10 goes to establish that plaintiff has given amount of Rs.2,00,000/
to the defendant no.1 as loan. The documents further prove that the
amount of Rs.2,00,000/ is due and payable to the plaintiff from
defendant no.2 towards the loan amount. Defendant no.2 has failed to
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(Judgment) 4 Summary Civil Suit No.568 of2019
repay the said loan amount to the plaintiff. The documents at list Exhibits
8 to 10 (collectively) goes to establish that defendant no.2 is liable to pay
Rs.2,00,000/ to the plaintiff on the date of filing of the suit towards the
said loan amount and therefore defendant no.2 has failed to repay his
loan amount to the plaintiff. In this background, it is held that plaintiff is
entitled to recover sum of Rs.2,00,000/ from the defendants.
7. The plaintiff has claimed 18% per annum on the principle
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 not commercial one and there is no such
contract existing between the parties as to the rate of interest which shall
be levied. Therefore, the transaction is a simple handloan transaction and
rate of interest @ 10% per annum would be just and proper to be
awarded on the principle sum adjudged i.e. amount of Rs.2,00,000/.
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.2,00,000/ from the defendant with
interest at the rate of Rs.10% 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. Defendants No. 1 and 2 shall jointly or severally pay
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(Judgment) 5 Summary Civil Suit No.568 of2019
Rs.2,00,000/ (Rupees Two Lacs only) to the plaintiff with
interest at the rate of 10% per annum from the date of
filing of the suit till its realization.
2. Defendants do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per rule.
Date:25.11.2019 (Ms. S. G. Shaikh)
AdHoc Judge,
City 5Civil Court,
Gr. Bombay
Typed on : 25.11.2019
Signed on :
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT.”
25.11.2019 at 4.40p.m. PUSHPA RAMESH WAGH
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Judgment 25.11.2019
Judgment signed by P.O. on 25.11.2019
Judgment uploaded on 25.11.2019
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(Judgment) 6 Summary Civil Suit No.568 of2019
C E R T I F I C A T E
I affirm that the contents of this PDF file Judgment are same
word to word, as per the original Judgment.
Name of the Stenographer : B.P.Chinchalkar
Court Name : 6th Joint Civil Judge Senior Division,
Nagpur. Dist. Nagpur.
Date : 18.07.2018
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