Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010043342020
Filed on :03.10.2020
Registered On :16.10.2020
Decided on :19/03/2021
Duration :Y-00/M-05/D-18
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.385 OF 2020
Exhibit-9
Mahendra Premchandji Jain Age 58 yrs
of Mumbai, an adult Indian
inhabitant, residing at 46, Modi Street,
Ground Floor, Fort, Mumbai-400 001 ….Plaintiff
Vs.
Deepak Kaluram Gangavane
age not known, of Mumbai an adult
Indian Inhabitant working for gain
with Western Railway, Store Department
4th Floor, Station Bldg, Mumbai-400 020
Mobile No.8693015001 and residing at
6/6, West Amardeep Colony, Shree
Malang Road Kalyan East ....Defendant
SUIT FOR RECOVERY OF Rs.56,953.42 ps
Appearance:-
Adv. Mr. Ramesh Jain for the Plaintiff.
Exparte against Defendant.
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2 Sum. Suit No.385/2020
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
CITY CIVIL COURT
GR.MUMBAI
(C.R. NO.59).
DATE : 19/03/2021
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 is resident of Mumbai. The defendant is also
resident of Mumbai. For the valuable consideration of Rs.50,000/-, the
defendant received from the plaintiff and towards discharge of the
defendant liability towards the plaintiff, drew and delivered a cheque
dated 23.05.2019 for Rs.50,000/- in favour of plaintiff. The said cheque
on being presented to the Bank has been dishonoured vide a memo of
dishonoured dated 24.05.2020 with the remark “ Funds Insufficient”.
The defendant failed to pay to the plaintiff inspite of demands,
reminders. The plaintiff has sent legal notice dated 28.12.2019, but
defendants failed to pay to the plaintiff. Hence, plaintiff is constrained
to file the suit for recovery of the said amount. The total suit claim of
the plaintiff for Rs.56,953.42ps.
3. The suit summons were duly served on the defendants
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 :-
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3 Sum. Suit No.385/2020
POINTS FINDINGS
1 What is due and payable from the
defendants to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.56,953.42ps.with
interest
@ 7% per annum on
principal amount of
Rs.50,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to prove the case of the plaintiff produced
following documentary evidence.
Exhibit.
No.
Description of documents Date
7 Cheque 23.05.2019
8 Notice 28.12.2019
AS TO POINT NO.1 :-
6. All the documents produced by the plaintiff at Exhibits-7
and 8 goes to establish that plaintiff has given amount of Rs.50,000/- to
the defendants. The documents further prove that the amount of
Rs.56,953.42ps. is due and payable to the plaintiff from defendants
towards the amount. The defendant has failed to repay the said
amount to the plaintiff. The documents at list Exhibits-7 and8 goes to
establish that the defendant is liable to pay Rs.56,953.42ps.. to the
plaintiff on the date of filing of the suit towards the said amount and
therefore, the defendants have failed to repay his amount to the
plaintiff. In this background, it is held that plaintiff is entitled to recover
sum of Rs.56,953.42ps. from the defendants.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
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4 Sum. Suit No.385/2020
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 commercial one and there is no
contract existing between the parties as to the rate of interest which
shall be levied. Therefore, the transaction is a commercial one and rate
of interest @ 7% per annum would be just and proper to be awarded on
the principal sum adjudged i.e. amount of Rs.56,953.42ps.. 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.56,953.42ps. from the defendants
with interest on principal amount of Rs.50,000/- at the rate of 7% 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. The defendants shall pay Rs.56,953.42ps.(Rs. Fifty Six
Thousand Nine Hundred Fifty Three and Forty Two Paise
Only) to the plaintiff with interest on principal amount of
Rs.50,000/- at the rate of 7% 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. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date : 19/03/2021 (Smt. S. G. Shaikh)
Judge, City & Civil Court,
Gr. Bombay
Dictated on :19/03/2021
Typed on :19/03/2021
Signed on :
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5 Sum. Suit No.385/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/03/2021 05.35 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
19/03/2021
JUDGMENT/ORDER signed by
P.O.on
20/03/2021
JUDGMENT/ORDER uploaded on 20/03/2021
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