Order 1

Order Details: Other
Pdf Text: ..1.. Summary Suit No.875/2018
MHCC010043022018 Presented on : 31/03/2018
Registered on : 24/08/2018
Decided on : 16/07/2024
Duration : 06Y 03M 17D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT-11
SUMMARY SUIT NO.875 OF 2018
(CNR – MHCC01-004302-2018)
Shripal Shantilal Jain,
An adult Indian Inhabitant of Mumbai,
having address at 303, Swamivatsalya Bldg.,
T. B. Kadam Marg, Chinchpokali,
Mumbai 400 033.
]
]
]
]
] ..Plaintiff
Vs.
Amrutlal Damji Shah, an adult Indian
Inhabitant having address at 601, Shangrilla
Apartment, L. T. Road, Borivali (W), Mumbai.
]
]
] ..Defendant
Appearance :-
Learned Advocate Yashpal Jain for plaintiff.
Learned Advocate Pariket Shah for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 16/07/2024.
J U D G M E N T
1 The plaintiff has filed this suit for recovery of principal
amount Rs. 20,00,000/- and Rs.10,13,277/- interest thereon. The
plaintiff submitted that he is resident of Mumbai. The defendant is also
resident of Mumbai. The defendant is engaged in the business of
redevelopment of construction of buildings. The plaintiff has requested
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12% per annum interest on total due amount of Rs.30,13,277/- from
the date of suit till its realization.
2 The plaintiff submitted that Santosh Jain is his brother. The
brother of plaintiff acquainted with the defendant No.1 and 2 through
one Mr. Kumar Pal Mehta. The defendant approached to plaintiff
through Kumar Pal Mehta and requested financial assistance from the
plaintiff for expansion of their business. They have requested financial
assistance with interest payable on demand by the plaintiff with 12%
per annum payable quarterly. Believing representation of the defendant,
the plaintiff has paid Rs.25,00,000/- by cheque No.583058 dated
14/05/2010 drawn on HDFC Bank. The said amount is encashed by
defendant, thereafter the defendant has regularly paid the interest as
agreed between the parties. He has paid the interest till September,
2013. The defendant has also shown some facts in the tax assessment
form. Thereafter, the defendant became irregular in payment of interest
and principal amount. On 30/10/2014, defendant has paid
Rs.5,00,000/- and on 16/11/2014, the defendant has paid Rs.68,055/-.
Amount of Rs.5,00,000/- was adjusted towards principal amount and
amount of Rs.68,055/- was adjusted towards interest. Accordingly, on
31/03/2015, the amount of Rs.23,13,989/- was due and payable by the
defendant to the plaintiff. Thereafter, the defendant has also confirmed
account statement prepared by plaintiff for the year 2014-2015.
Thereafter, in spite of several requests and reminders defendant
neglected and failed to pay the due amount. Therefore, on 17/03/2018
the plaintiff has sent demand notice calling upon the defendant to pay
Rs.20,00,000/- towards principal amount, of Rs.10,03,993/- was1
interest thereon. In spite of notice defendant failed to pay the amount.
Therefore, plaintiff has filed the instant suit.
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3 In response to the writ of summons, defendant appeared.
Plaintiff took out summons for judgment. The defendant filed reply to
Summons for Judgment No.128 of 2019. He has denied contents of the
plaintiff made in the plaint. As per statement of defendant, this Court
has no jurisdiction to try and entertain the suit. The defendant
submitted that as per statement of plaintiff he has advanced financial
assistance in the year 2010. He has filed suit in the year 2018.
Therefore, the suit is hopelessly barred by law of limitation. The
defendant submitted that plaintiff has suppressed material facts and
came before the Court with unclean hands. Therefore, he is not entitled
for any relief. In Para 9 of the reply, the defendant submitted that he
was in need of money and have requested plaintiff to help him for
financial assistance, accordingly, he had taken friendly loan. In Para 10
of the reply, the defendant has admitted submission of information in
the TDS form about payment of interest to the plaintiff, but as per
statement of defendant, he submitted form of TDS in the year 2015.
Plaintiff gives said cause of action for filing suit in the year 2018. With
this the defendant requested to dismiss Summons for Judgment as well
as the suit. The plaintiff also filed rejoinder to the reply and denied
contents of the reply.
4 After hearing the parties, the Court had directed defendant
to pay Rs.20,00,000/- to the plaintiff within 6 month from the date of
order i.e. 02/05/2022. The defendant failed to comply the order of this
Court, however, it is submitted that the defendant has challenged the
order on summons for judgment No.128 of 2019 before the Hon’ble
High Court and prayed to adjourn the matter till decision of the Appeal.
I am fortified by the judgment passed by the Hon’ble Supreme Court in
the case of Sanjiv Kumar Singh Vs. The State of Bihar and others
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..4.. Summary Suit No.875/2018
reported in 2023 LiveLaw (SC) 63 and MANU/SCOR/11194/2023,
wherein it is opined by the Hon'ble Lordship that -
“keeping in view the provisions as contained in Order
XXXXIV Rule 5 of Code of Civil Procedure, unless the
appeal is listed and there is an interim order, the mere
filing of the Appeal would not operate as a stay”
5 Admittedly, there is no stay granted in this matter, hence, I
find no force in the submissions of defendant.
6 The plaintiff has submitted that as per the provisions of
Order XXXVII Rule 3(6)(b) of Code of Civil Procedure, plaintiff is
entitled for decree forthwith. I am fortified by the judgment passed by
the Hon'ble High Court in the case of K. R. Patel (HUF), Mumbai Vs. M.
M. Developers, Mumbai and others reported in 2015(3) Mh.L.J. 260.
The Hon'ble High Court has opined in paragraph No.7 -
“in my view the course of action that is proposed to be
followed by the Trial Court can be said to be in
contravention of the mandate of Order XXXVII Rule (3)
(6)(b) of the Civil Procedure Code. A reading of the said
provision makes it clear that on failure of the Defendant
to comply with the condition imposed by the Court, the
Plaintiff is entitled to judgment forthwith. The said
provision was the subject matter of the judgment of a
Division Bench of this Court in M/s. D. Shanalal's case
(supra), where the Division Bench has observed that
when the Defendant fails to comply with a conditional
order passed under Order XXXVII, the Defendant is
precluded from further contesting the plaintiff's claim
and that the facts stated in the plaint must be considered
to have been admitted by the Defendant and the
Plaintiff becomes entitled to judgment. The Division
Bench has further observed that Order XXXVII not only
provides for abridgment of the procedure of suits
covered by the said provisions but also the said
provisions restrict and/or curtail the rights of the
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Defendants in these suits to contest the Plaintiff's
claims.”
7 In view of the observation in the cited case, it is not
possible to abstain from proceeding with the matter. There is no scope
of any further inquiry and the plaintiff would be entitled for the
judgment forthwith, due to the default committed by defendants in
obeying conditional order passed in summons for judgment. The
omission to comply the order of summons for judgment would
definitely amount that the claim in the plaint is accepted to the
defendants and the Court has to proceed to pass judgment in terms of
the law which has been enunciated in the cited case K. R. Patel Supra.
Hence, it is presumed to be proved that the plaintiff has advanced a
sum of Rs.20,00,000/- to the defendant and defendant failed to repay
as agreed. Thus, plaintiff is entitled to recover Rs.20,00,000/- with
interest.
8 So far as interest is concerned, it is admitted to the plaintiff
that the defendant have paid interest upto 16/11/2014, thus, plaintiff is
entitled for interest from 17/11/2014.
9 So far as rate of interest is concerned, the plaintiff is
claiming interest at the rate of 12% per annum from the defendant, but,
to me, it appears to be exorbitant. No doubt the plaintiff has suffered
loss in business and profit, due to failure to repay the amount by the
defendant. Had it been paid to the plaintiff as per demand, it would
have invested and would have earned profit therefrom. Therefore, I am
of the view that the plaintiff is entitled for interest at the rate of 9% per
annum from 17/11/2014, till its full realisation.
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10 As the plaintiff was constrained to file the suit for recovery
of loan amount, therefore, defendant is liable to pay the costs of suit. In
the result, I proceed to pass the following order :-
ORDER
1. Summary Suit No.875 of 2018, is hereby partly
decreed with costs.
2. Plaintiff do recover an amount of Rs.20,00,000/- from
the defendant alongwith interest at the rate of 9% per
annum from 17/11/2014, till the recovery of entire
amount.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 16/07/2024 C.R. No.84
Dictated and Typed on : 16/07/2024
Draft corrected on : 18/07/2024
Signed on : 18/07/2024
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“Certified to be true and correct copy of the original signed order”.
20/07/2024
at about 05.00 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 16/07/2024
Order signed by Hon'ble Judge on : 18/07/2024
Order uploaded on : 20/07/2024
at about 05.00 p.m.
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