Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010042892019
Presented on : 12/04/2019
Registered on : 18/06/2019
Decided on : 18/08/2022
Duration : Y M D
03 04 04
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO. 386 OF 2021
(SUMMARY SUIT NO.623 OF 2019)
Ex.14
1.Mr.Suresh Vasant Pange
Age: 68 years, Occ: Service
2.Mrs. Sulbha Suresh Pange
Age: 65 years, Occ: Retired
residing at Room No. 396,
Building No. 11, Vrindavan CHS,
Nehru Nagar, Kurla (E),
Mumbai 400 024. ..Plaintiff
VERSUS
1. Padmashri Sarees
127, B, Mastan Manzil,
Near Ranjit Studio,
Dadasaheb Phalke Road,
Dadar (E), Mumbai 400 014
2.Parasmani Sarees
134, Nanabhai Chambers
Shop No. 3, G. K. Road, Hind Mata
Dadar (E), Mumbai 400 014.
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3. Jayesh Lakhani Gala
Partner Padmashri Sarees &
Parasmani Sarees
Aged: 55 years, Occ: Business
3rd Floor, Room No. 20
Adhar Coop. Hsg. Soc.
Near Shivsena Shakha
Gopal Nagar,Dombivali (E),
Dist. Thane
4. Kamlesh Jethalal Karani
Partner Padmashri Sarees &
Parasmani Sarees
Aged: 52 years, Occ: Business
B12, Padmakar Apartment,
2nd floor, Tilak Road,
Dombivali (E)
Thane ..Defendants
____________________________________________________
Ld. Advocate Girish Joshi for plaintiffs.
DefendantsExparte.
______________________________________________________
JUDGMENT
(Delivered on 18th day of August, 2022)
Suit is for recovery of an amount of Rs.4,07,225/ along
with further interest.
Briefly stated, plaintiff's case, is as under:
2. Defendant Nos.1 and 2 are the partnership firms.
Defendant Nos.3 and 4 are the partners of defendant Nos.1 and 2
partnership firms. Defendant Nos.3 and 4 are doing their business in
the name of defendant Nos.1 and 2. Defendants asked plaintiff to make
investment in their business. They assured to pay interest at the rate of
1.10% per month. Plaintiff advanced total amount of Rs.3,25,000/ to
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defendants. Defendant Nos.3 and 4 have issued receipts on behalf of
defendant Nos.1 and 2. Defendants paid interest to the plaintiff till
April2017. Thereafter, they failed to make the payment of interest
amount. On 07/11/2018, defendant No.3 issued a cheque of
Rs.25,000/ from his proprietorship business namely M/s. Priyal Sarees.
However, said cheque was dishonoured on the ground of account
blocked. Defendants failed to pay the outstanding amount. Hence, this
suit.
3. Defendant Nos.1 and 4 were duly served with writ of
summons, but, they failed to tender their appearance, therefore, suit
proceeded exparte against defendant Nos.1 and 4 as per order dated
06/03/2021. Defendant Nos.2 and 3 appeared before the Court.
Plaintiff has taken out Summons for Judgment bearing No.166 of 2021
against defendant Nos.2 and 3. However, defendant Nos.2 and 3 failed
to apply for leave to defend the suit within stipulated period.
4. Heard Ld. advocate for plaintiff.
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.4,07,225/ is
outstanding against defendants ?
Proved
2. What order? Suit is partly decreed
as per final order.
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REASONS
6. Suit is filed as per Order 37 Rule 2 of C.P.C. Defendant
Nos.1 and 4 failed to appear before the Court. Defendant Nos.2 and 3
appeared before the Court. Plaintiff has served Summons for Judgment
to defendant Nos.2 and 3, but, defendant Nos.2 and 3 failed to apply
leave to defend the suit. Therefore, as per order 37 Rule 3(6)(a) of
C.P.C. , plaintiff is also entitled for judgment against defendant Nos.2
and 3.
Point No.1
7. In order to substantiate the claim, plaintiff filed claim
affidavit at Ex.11 and placed reliance upon documents below list Ex.12.
8. PW1 Suresh Pange reiterated all the facts pleaded in the
plaint in his claim affidavit. PW1 Suresh deposes that defendant Nos.3
and 4 asked plaintiffs to make an investment in their business.
Accordingly, plaintiffs have made payment of Rs.3.25 lacs to
defendants. Plaintiffs have filed on record original receipts along with
their translation to show that plaintiffs paid an amount of Rs.3.25 lacs
to defendants. Plaintiffs submit that defendants paid interest up to
April2017. Suit proceeded without appearance of defendants,
therefore, plaintiffs' version remain unchallenged. Plaintiffs further
submit that in order to pay interest amount, defendant No.3 issued
cheque of Rs.25,000/ on 07/11/2018. Said cheque was dishonoured.
Plaintiff has filed on record original cheque issued by defendant No.3
along with cheque return memo. Thus, plaintiffs' claim is well
supported by documents filed on record. From the documents filed on
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record, it can be safely inferred that plaintiffs advanced an amount of
Rs.3.25 lacs to defendants. Defendants assured to pay interest at the
rate of 1.10% p.m. Plaintiffs by applying agreed rate of interest,
claimed an amount of Rs.4,07,225/. Thus, plaintiffs have proved that
an amount of Rs.4,07,225/ is outstanding against defendants. Point
No.1 is answered accordingly.
9. Plaintiff has claimed interest @ 1.10% p.m. i.e. 13.20%
p.a. from the date of filing suit till it's realization. Taking into
consideration, the nature of transaction and long standing pendency of
the case, it would be appropriate to award interest at the rate of 12%
p.a. from the date of filing of suit till it's realization. In the result,
following order.
ORDER
1. Commercial suit No. 386 of 2021 is partly decreed with costs.
2. Defendants shall pay an amount of Rs.4,07,225/ (Rupees Four Lacs
Seven Thousand Two Hundred and Twenty Five only)alongwith interest
@ 12% p.a. on the principal amount of Rs.3,25,000/ to plaintiffs from
the date of the suit till it's realization 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.
(S. U. HAKE)
JUDGE,
Dt. 18/08/2022 CITY CIVIL COURT, GR.MUMBAI.
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Dictated on : 18/08/2022
Transcribed on : 19/08/2022
Signed on : 19/08/2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/08/22 at 01.45 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
18/08/2022
Judgment and order signed by P.O. 19/08/22
Judgment/order uploaded on 20/08/22
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