Final Order 1

Order Details: Ex-parte Judgement
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MHCC010042502019 Presented on : 11-04-2019
Registered on : 23-04-2019
Decided on : 25-11-2021
Duration : Y M D
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BEFORE MUMBAI CITY CIVIL COURT AT GR. MUMBAI.
COMMERCIAL SUIT NO.374 OF 2021
Presided Over by HHJ Shri. S. U. Hake
(SUMMARY SUIT NO.493 OF 2019)
Ex.07
1. Mr.Ashok Vaman Sadwelkar,
Age 71, Occupation: Retired
Flat No.34, 2nd Floor
Swasti Shri Society
Plot No.52, Karve Nagar
Pune 411052
2. Mrs.Aarti Ashok Sadwelkar,
Age 62, Occupation: Housewife
Flat No.34, 2nd Floor
Swasti Shri Society
Plot No.52, Karve Nagar
Pune 411052 ..Plaintiffs
V/S
K Merchant Constructions Ltd
A Public Limited Company
registered under the Provisions of
the Companies Act and having
its registered office at 42/44,
Shree Niwas, 5th Floor,
Bandhu Gokhale Road,
Mumbai400 004. ..Defendant
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____________________________________________
Ld. Advocate Manoj Agiwal for plaintiffs.
Defendant Exparte._______________________________________
JUDGMENT
(Dated this 25th day of November, 2021)
1. Suit is for recovery of an amount of Rs.58,22,078/
with interest @ 18% p.a.
2. Relevant facts in the plaint may be summarized as
under:
Plaintiff No.2Mrs.Aarti is wife of plaintiff No.1
Ashok. Plaintiffs reside at Pune. Plaintiffs and defendant entered
into Memorandum of understanding dated 08/10/2011. By
virtue of said Memorandum of understanding, defendant agreed
to sell residential flat in the redevelopment project by name Shiv
Parvati Building, Mugbhat lane for total consideration of Rs.71.50
lacs. As per said Memorandum of understanding, 25% of the
total amount was to be paid at the time of execution of
Memorandum of understanding. Accordingly, plaintiffs paid an
amount of Rs.17,87,500/ on 08/10/2011. Thereafter, again on
11/04/2012, plaintiffs further paid Rs.7,15,000/. Thus, plaintiffs
paid total amount of Rs.25,02,500/ to defendant.
3. There was no progress in the reconstruction of the
building till the year 2016. Therefore, Memorandum of
understanding dated 08/10/2011 was cancelled between
plaintiffs and defendant. Plaintiffs returned the original
Memorandum of understanding to defendant. Defendant also
issued the letter dated 14/04/2016 regarding cancellation of
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plaintiffs prebooking flat in Shiv Parvati project. Towards refund
of the principal and interest amount, defendant issued four
cheques. Defendant issued two cheques for refund of principal
amount of Rs.25,02,500/ and two cheques of Rs. 20,97,750/
towards payment of interest. Defendant agreed to pay the interest
at the rate of 18% p.a. All the four cheques given by defendant
were dishonoured upon presentation. Plaintiffs filed complaint as
per provisions of Negotiable Instruments Act before Judicial
Magistrate, Pune. As per letter dated 14/04/2016, plaintiffs are
entitled to principal amount of Rs.25,02,500/ alongwith interest
at the rate of 18% p.a. Plaintiffs have calculated the interest at
the rate of 18% p.a. on the principal amount of Rs.25,02,500/ till
filing of the suit which comes to Rs.58,22,078/. Defendant failed
to pay this amount. Hence, this suit.
4. As per service affidavit(Ex.2), defendant was deemed
to be served with writ of summons through paper publication,
but, defendant failed to tender it's appearance and therefore suit
proceeded exparte against defendant by order dated 27/09/2021.
4. Heard Ld. advocate for plaintiffs.
5. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Do the plaintiffs prove that an
amount of Rs.58,22,078/ is
outstanding against the
defendant?
Proved
2. What order? Suit is decreed as per
final order.
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REASONS
Point No.1
6. In order to substantiate the claim, plaintiffs have
filed claim affidavit of PW1 Ashok Vaman Sadwelkar at Ex.5.
PW1 Ashok Sadwelkar reiterated all the facts pleaded in the
plaint. PW1 Ashok Sadwelkar also filed on record list of
documents at Ex.6. Plaintiffs are coming with the specific case
that they have paid an amount of Rs.25,02,500/ towards booking
of the residential flat in the redevelopment project undertaken by
defendant. The said booking was cancelled in the year 2016.
Towards refund of the amount taken from the plaintiffs,
defendant issued four cheques. Defendant issued two cheques for
refund of principal amount of Rs.25,02,500/ and two cheques of
Rs. 20,97,750/ towards payment of interest. The record further
shows that all the four cheques issued by defendant were
dishonoured on being presented by plaintiffs. As stated supra,
defendant failed to tender his appearance, as per Order 37 Rule 3
of C.P.C., therefore, plaintiff's claim which is well supported by
the documents filed on record, needs to be accepted. From all
above discussion, it is held that plaintiffs have succeeded to prove
that an amount of Rs. 58,22,078/ is outstanding against
defendant on the date of filing of suit. Point No.1 is answered
accordingly. In the result, following order:
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ORDER
1. Suit is decreed with costs.
2. Defendant shall pay an amount of Rs.58,22,078/
(Rs. Fifty Eight lacs, Twenty Two Thousand, and
Seventy Eight only) alongwith future interest @
18%p.a. on the principal amount of Rs.25,02,500/
from the date of the suit till it's realization to plaintiffs
within two months.
3. Court fees be refunded as per (E) Rules framed under
Section 11(2) of the Bombay City Civil Court Act, 1948,
for the refund of Institution Fee.
4. Decree thus follow.
25/11/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 25/11/2021
Transcribed on : 25/11/2021
Signed on : 25/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
25/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 25/11/21
Judgment and order signed by P.O. 25/11/21
Judgment/order uploaded on 25/11/21
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