Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010043402020 Presented on 03-10-2020
Registered on 04-11-2020
Decided on 21-08-2023
Duration 02Y: 10M : 18D
Exhibit 11
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 423 OF 2020
Mahavir Lalchand Rathod, Age--yrs. of
Mumbai, an adult, Indian, Inhabitant, having
his address at 140, Pine Bldg. D’lima Street,
Dockyard (East), Mumbai-400 010.
...Plaintiff
Versus
Mangesh S. Koshimkar, age not known of
Mumbai an adult Indian inhabitant, working
for gain with Mazagaon Dock Ltd T.N.20647,
Skilled GR II, MTN Dept., Dock Yard (East),
Mumbai-400010 and residing at Rasana
Residency, 104, Tilak Road Old Panvel, Near
Om Bakery, Savarkar Chowk Panvel Dist:
Raighad-410206.
...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
Defendant absent - Ex-parte.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 21-08-2023.
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JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.1,00,515.06ps. Brief facts of the plaintiff’s case may be summarized
as under:
2. The plaintiff is doing business of money lending. On 25th
April, 2019, for valuable consideration of an amount of Rs.2,80,000/-
lakh received by the defendant from the plaintiff, the defendant drew
and delivered a demand promissory note, agreeing thereby to pay on
demand to the plaintiff the amount of Rs.80,000/- with the interest @
Rs.18% p.a.
3. The plaintiff, from time to time demanded the said amount
to the defendant. The defendant failed and neglected to pay the said
amount. Therefore, the plaintiff issued the demand notice dated
28-11-2019 through his advocate and called upon the defendant to pay
the amount. The defendant received the said notice, but he failed to
reply the notice, and even neglected to pay the amount. Hence, the
present suit. The plaintiff has prayed for the decree of
Rs.1,00,515.06 ps. with the further interest @ Rs.18% p.a. from the
date of the filing the suit till its full realization.
4. The defendant was served with the writ of summons
through Bailiff. The plaintiff has filed affidavit of service at Exh.5.
Despite service, the defendant has not caused his appearance and
therefore, the suit proceeded ex-parte against him by the order dated
17-01-2022.
5. In support of claim, the plaintiff filed his affidavit of claim
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at Exh.6 and reiterated his contention of recovery of Rs.1,00,515.06 ps.
along with further interest at the rate of 18% p.a. on Rs.80,000/-. The
plaintiff has filed and relied upon the following documents.
Sr.
No.
Exhibit
Nos. Particulars
1 Exh.8 Promissory Note dated 25-04-2019
2 Exh.9 Plaintiff Advocate’s letter dated 28-11-2019
3 Exh.10 Forms under Bombay Money Lending Act
4 - Money Lender Licence
5 - Books of Accounts
6. To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr. No. Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.1,00,515.06/-
ps. from the defendant?
If yes, at what rate interest?
Yes.
Entitled to interest @
Rs.9% p.a. on Rs.80,000/-
from the date of filing the
suit.
2. What order and decree? As per final order.
R E A S O N S
As to points No.1 & 2:
7. The plaintiff has filed claim affidavit in support of his
contention of receipt of promissory note for consideration of
Rs.80,000/-. His oral testimony is supported by the original promissory
note dated 25-04-2019. The plaintiff enjoys presumption under Section
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118(a) of Negotiable Instruments Act, 1881, which supports the
contention of plaintiff that the present promissory note was issued for
the valuable consideration of Rs.80,000/-.
8. The defendant has not appeared in the matter in spite of
the receipt of suit summons from this Court, which gives an inference
that defendant doesn’t want to contest and he does not want to dispute
the claim of the plaintiff. In view of Rule 2(3) of order XXXVII of CPC,
owing to failure of the defendant to cause appearance, it needs to be
presumed that the defendant admits the allegations contained in the
plaint. The Promissory Note is of dated 25-04-2019 for the amount of
Rs.80,000/-. Therefore, on the aforesaid background and having regard
to the unrebutted and unchallanged evidence of plaintiff’s witness, I
hold an amount of Rs.80,000/- is due and payable to the plaintiff from
the defendant.
9. It may be seen that the plaintiff has applied the interest
Rs.20,515.06/- at the rate of 18% p.a. on 80,000/- from 25-04-2019 till
filing of the suit. In view of provision of Section 79 of Negotiable
Instruments Act, when the suit is based on promissory note, and when it
was agreed rate of interest, the plaintiff can be held entitled to the
interest at the agreed rate i.e. @ Rs.18% p.a. from the date execution
of the said promissory note till filing the suit. Hence, I hold that the
plaintiff is entitled to interest amount of Rs.20,515.06/- Thus, the
plaintiff is entitled to recover the amount of Rs.1,00,515.06/-.
10. The plaintiff had agreed to pay the interest at the rate of
Rs.18% p.a. on the amount of Rs.80,000/-. Therefore, I hold that the
plaintiff can be made entitled to the future interest on the amount of
Rs.80,000/- from the date of filing the suit. The plaintiff has prayed
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for the further interest at the rate of Rs. 18% p.a. However, I am of the
view that the same is excessive as compared to rate of interest of
Nationalized Banks. Therefore, having regard to the provision of
section 34 of the CPC, I am of the view that granting interest at the rate
of Rs.9% p.a. on the principal amount would be just, proper and
reasonable. Hence, I hold that the plaintiff is entitled to interest at the
rate of Rs.9% p.a. on the principal amount, and hence, I answer point
No.1 accordingly. In the result, in answer to point No.2, I proceed to
pass following order.
O R D E R
1) Summary Suit No. 423 of 2020 is hereby decreed with costs.
2) The defendant shall pay an amount Rs.1,00,515.06/-(Rupees
One lakh, Five Hundred and Fifteen, and six paise only) to the
plaintiff.
3) The defendant shall pay to the plaintiff the interest at the rate of
Rs.9% p.a. on Rs.80,000/- (Rupees Eighty Thousand only) from
03-10-2020, the date of filing of suit till its full realization.
4) The plaintiff is entitled to get refund 2/3rd of the court-fees
paid by him.
5) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 21-08-2023 Court Room No.61
Mumbai.
Dictated online on: 21-08-2023
Corrected & signed on : 22-08-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22-08-2023 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
21-08-2023
JUDGMENT/ORDER signed by P. O. on 22-08-2023
JUDGMENT/ORDER uploaded on 22-08-2023
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