Final Order 1

Order Details: Copy of Judgment
Pdf Text: Sum. Suit No.665/2023 -: 1 :- Judgement
MHCC010042912020
Presented on : 25092020
Registered on : 04112020
Decided on : 02042024
Duration : YY:MM:DD
03 : 06 : 08
IN THE BOMBAY CITY CIVIL COURT, MAZGAON AT BOMBAY
SUMMARY SUIT NO. 665 OF 2023
(OLD SUMMARY SUIT NO.420 OF 2020)
EXHIBIT NO.33
Mrs. Rupal Rishi Thakkar
Age about 35 Years, Occupation: Housewife,
Residing at: Flat No. 9, Gautam Building,
Tilak Road, Ghatkopar East, Mumbai
400077.
... Plaintiff.
V/s
Dhaval Anand Shah,
Age about 41 years, Occupation: Business.
Residing at: 1401, Deepak Building, R. B.
Mehta Road, Ghatkopar (East), Mumbai
400077. ... Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(INCHARGE OF COURT ROOM NO.83)
DATE : 02nd DAY OF APRIL 2024
: Appearances:
Ld. Adv. Vijay Waghela a/w. Adv. Sujata Natekar for the plaintiff.
Ld. Adv. Vijay Sharma for defendant absent.
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Sum. Suit No.665/2023 -: 2 :- Judgement
JUDGMENT
The plaintiff has filed the present Summary suit for recovery of
sum of Rs.25,90,000/ with further interest @ 12% per annum on
principal amount of Rs.20 Lakhs from the 25.09.2020 till its full
realization.
Initially the plaintiff has filed Summary Suit No.420 of 2020
against the defendant for recovery of amount. However, as per office
order dated 06.04.2021, the suit is converted to Commercial Suit
No.898 of 2021. Thereafter, as per order dated 03.08.2023 passed by
my Ld. Predecessorincourt the suit is again registered as Summary
Suit.
2. Briefly stated facts of the case are as under:
The defendant is Principal Officer, Director and incharge of his
company ‘Apex Consumer Appliance Private Limited’. The plaintiff had
given friendly Loan of Rs.20 Lakhs on 16.05.2017 vide cheque
No.000004 of HDFC Bank to the defendant. The defendant agreed to
pay interest @12% per annum on quarterly basis.
3. The defendant paid interest from time to time to the plaintiff.
The last interest of Rs. 60,000/ was paid on 20.04.2018 up to the
period 31.03.2018 vide cheque No.080777 of YES Bank. The said
amount was credited in the account of the plaintiff and accordingly
HDFC bank has issued bank certificate on 18.08.2020.
4. Thereafter, the defendant failed and neglected to return
principal amount of Rs. 20 Lakhs. The defendant gave the confirmation
of account by email dated 08.05.2019 and confirmed that Rs.23 Lakhs
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Sum. Suit No.665/2023 -: 3 :- Judgement
are due and payable by him to the plaintiff as on 31.03.2019. Now the
plaintiff has to recover an amount of Rs.25,90,000/ as on 17.09.2020.
The plaintiff through her advocate issued demand notice on
02.07.2020, Despite receiving notice the defendant failed to pay the
outstanding amount. Hence, the suit.
5. After appearance of the defendant, the plaintiff has taken out
Summons for Judgment No.60 of 2020. My Ld. Predecessorincourt
vide order dated 06.09.2022 had granted conditional leave to defend to
the defendant upon depositing Rs.20 Lakhs within 30 days. However,
the defendant failed to comply with the order. Thereafter, matter
proceeded for evidence without written statement vide order dated
07.01.2023.
6. The plaintiff has filed affidavit of evidence of PW1, Mrs. Rupal
Rishi Thakkar at Exh.15 and of PW2, Mr. Vivek Balwantrao Thakkar at
Exh.29. The plaintiff relied on various documents at Exh.20 to Exh.28
respectively.
7. The Ld. Advocate for plaintiff filed nondepositor certificate
(Exh.31) on 16.03.2024.
8. Heard the Ld. Advocate for the plaintiff. He filed written notes of
arguments at Exh.32. Perused the record.
9. Following points arise for my determination, to which I have
given my findings with reasons as follows:
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Sum. Suit No.665/2023 -: 4 :- Judgement
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of amount of Rs.25,90,000/
with further interest @ 12% per annum
on principal amount of Rs.20 Lakhs
from the 25.09.2020 till its full
realization, as claimed?
Yes
2. What Order and Decree? As per final
order.
REASONS
As to Point No.1:
10. The plaintiff has filed affidavit of claim PW1 Mrs. Rupal and
PW2 Mrs. Vivek. They stated as per the contents of the plaint
averments; hence I do not want to reproduce the same to avoid the
repetition. To substantiate her claim the plaintiff has filed documents;
HDFC Bank certificate dated 18.08.2020 (Exh.20); Plaintiffs banker
HDFC Bank certificate dated 18.08.2020 (Exh.21); photocopy of
Defendants duly signed cheque No.08077 of Rs.60,000/ drawn in
favour of the plaintiff dated 13.04.2018 from the defendants bank
account viz Yes Bank (Exh.22); Defendants confirmation of accounts
emailed on 08.05.2019 with five attachments (Exh.23); Ledger account
of the deft stood debit of Rs.25,40,000/ in plaintiff books of account as
on 30.06.2020 (Exh.24); Copy of demand letter of plaintiffs advocate
Vijay Vaghela dated 02.07.2020 (Exh.25 ); Copy of postal receipt dated
03.07.2020 (Exh.26 ); Postal acknowledgement card showing receipt of
the notice by the defendant (Exh.27) and Certificate under section 65
B of Evidence of Act (Exh.28).
11. Herein it is to be noted that, the plaintiff has taken out summons
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Sum. Suit No.665/2023 -: 5 :- Judgement
for judgement No.60 of 2020. My Ld. Predecessorincourt while
deciding it on merit granted conditional leave to defend the suit to
defendant, but subject to condition of depositing principal amount of
Rs.20 Lakhs within 30 days from the date of order. Upon depositing
said amount within specified period, permission to file written
statement is granted to defendant within 30 days from the date of
deposit. However, the defendant failed to deposit the amount. The
plaintiff filed non depositor certificate Exh.31.
12. In view of Order 37 Rule 3 (6) (B) of the Code of Civil
Procedure, if the defendant is permitted to defend as to the whole or
any part of the claim, the court or judge may direct him to give such
security within such time as may be fixed by the Court of Judge and
that, on failure to give such security within time specified by the Court
or Judge or to carry out such other direction as may have been given by
the court or Judge, the plaintiff shall be entitled to Judgment forthwith.
As discussed supra, in spite of giving conditional leave to defend, the
defendant failed to comply with the order dated 06.09.2022. therefore,
on the basis of pleadings, oral and documentary evidence the plaintiff
duly proved her claim. Hence, my answer to point no.1 is affirmative.
AS to Point No.2.
13. In view of my above discussion, I pass the following order;
ORDER
1. Summary Suit No.665 of 2023 is Decreed with Cost.
2. The defendants do pay principal amount of Rs.25,90,000/ with
further interest @ 12% per annum on principal amount of Rs.20 Lakhs
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Sum. Suit No.665/2023 -: 6 :- Judgement
from the 25.09.2020 till its full realization.
3. Decree be drawn up accordingly.
4. Summary Suit No.665 of 2023 disposed of.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:02.04.2024 Mazgaon, Gr. Mumbai
(Incharge of C. R. No.83.)
Dictated on : 02.04.2024
Transcribed on : 02.04.2024
Signed on : 02.04.2024
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Sum. Suit No.665/2023 -: 7 :- Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 03.04.2024 NAME OF STENOGRAPHER
TIME: 05.44 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. Virendra D. Kedar
(InCharge of Court Room No.83)
Date of Pronouncement of
JUDGEMENT/ORDER
02.04.2024
JUDGMENT/ORDER signed by
P.O. on
02.04.2024
JUDGEMENT/ORDER uploaded on 03.04.2024
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