Final Order 1

Order Details: Copy of Judgment
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MHCC010044022018
Presented on : 03-04-2018
Registered on : 10-04-2018
Decided on : 25-02-2021
Duration : 2 years, 10 months, 22 days
IN THE COURT OF
COURT 1 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
SUIT/101054/2018
Exhibit No.: 11
1. Mohammed Sajid Mohammed Salim Ansari
Aged about 34 years, of Mumbai,
Indian Inhabitant, residing at 653 ½
Galli No.10, Noor Goddiwala Chawl,
Behram Nagar, Bandra(East),
Mumbai-400 051
2. Mohammed Salim Mirza
Age about 36 years,of Mumbai
Indian Inhabitant, residing at
Flat no.1201, 12th floor,
KSA Danish Villa, 2nd and 3rd
Ghelabai Street, Madanpura,
Mumbai-400 008. ..Plaintiffs
Versus
1. Mohammed Ahmed Choghule
2.Shabira Bi Ahmed Choghule
both Adults, age not known
of Mumbai Indian Inhabitants
residing at, 125, Abdullah Tower, 1st Floor, Flat No.2, Umerkhadi,
Dongri, Mumbai-9 ..Defendants
Advocate for plaintiffs : Jayesh R. Vyas
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None appeared for the defendants.
ORAL JUDGMENT DECLARED ON 25/02/2021
1. This is a suit for specific performance of the contract of
loan agreement dated 30/03/2017.
2. In short the case of the plaintiffs is that, plaintiffs and one
Ibrahim Choghule had an agreement dated 30/03/2017, whereby
plaintiffs advanced a loan of Rs.25 lacs to said Ibrahim Choghule. The
agreement was executed on 30/03/2017. Ibrahim Choghule promised
to repay the amount of the loan on the demand of the plaintiffs. It was
also agreed that for the repayment of entire loan amount, Ibrahim
Choghule undertook to pay to the plaintiffs every month 50% as profit
in the business on the principal loan amount. It was also agreed
between the parties that in future anything happens to Ibrahim
Choghule or loss in the business, then the plaintiffs can claim their loan
amount by acquiring/selling the property of Ibrahim Choghule. The
plaintiffs have received an amount of Rs.2 lacs i.e. Rs.50,000/- per
month as profit for the period of four months from Ibrahim Choghule.
Ibrahim Choghule has to refund the entire principal amount of Rs.25
lacs. Ibrahim Choghule died on 06/12/2017. Defendant no.1 is elder
brother and defendant no.2 is mother of said Ibrahim Choghule. The
plaintiffs approached the defendants for demand of the amount but
the defendants filed false complaint against the plaintiffs. The plaintiffs
issued notice dated 02/02/2018 through their advocate and called
upon the defendants to confirm whether the defendants are the only
heirs and legal representatives of Ibrahim Choughle, if any, left behind
by the said deceased and to make the payment of Rs.25 lacs. The
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defendants refused the service of the letters. On the failure of the
defendants to make the payment of said amount, the plaintiffs have
filed the present suit.
3. The defendants did not appear in the matter and therefore
the suit proceeded ex-parte against them.
4. On the basis of the arguments canvassed by the Ld.
Advocate for the plaintiffs and the avernments in the plaint, following
points arise for my determination and findings to it are recorded for the
reasons stated hereinafter:-
POINTS
1. Whether the plaintiffs prove that deceased-Ibrahim Chougule
executed friendly loan agreement dated 30/03/2017?
2. Whether the plaintiffs prove that defendants are the legal heirs
and representatives of deceased Ibrahim Chougule?
3. Whether the plaintiffs prove that defendants are bound to
perform the agreement dated 30/03/2017?
4. Whether the plaintiffs proves that they are entitled for an amount
of Rs.29,25,342.47/- from the defendants?
5. What order and decree?
FINDINGS
1. In the affirmative
2. In the negative
3. In the negative
4. In the negative
5. As per final order.
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REASONS
Point nos.1 to 4
5. It is the contention of the plaintiffs that plaintiffs and
deceased Ibrahim Chougule executed friendly loan agreement. The
plaintiffs have paid an amount of Rs.25 lacs to Ibrahim Chougule. The
deceased- Ibrahim Chougule agreed to repay the said loan amount as
and when demanded by the plaintiffs. The deceased assured to pay
50% of the profit every month in the business of the plaintiffs and he
shall continue to pay the same till repayment of the loan amount. The
document of friendly loan agreement (Ex.5) is filed on record. There is
no challenge to the evidence of plaintiff no.1 in that regard. The
plaintiffs have led evidence to that effect and has established the
execution of the said agreement between them and deceased- Ibrahim
Chougule. The other contention of the plaintiffs is that as per clause(5)
of the agreement it contemplates that deceased- Ibrahim Chougule
agreed that if anything happened to him and loss to the business, the
plaintiffs can claim the loan amount by acquiring/selling the property
owned by deceased- Ibrahim Chougule i.e. Gala no.3, Ground floor,
231-B, Weavers Building, Maulana Azad Road, Madanpura, Mumbai-
400 008. It is also the recital in the agreement about knowledge of this
agreement to his family members. From the plaint avernments and the
evidence of the plaintiffs it is apparent that deceased- Ibrahim
Chougule passed away on 06/12/2017. The contention of the plaintiffs
is that plaintiffs demanded the said loan amount after his demise from
the defendants but they failed and neglected to pay the amount. On
the contrary, they filed complaints against the plaintiffs. The plaintiffs
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have issued notice (Ex.6) through their advocate and called upon the
defendants that as per the knowledge of the plaintiffs, the defendants
are legal heirs and representatives of the deceased and they have
inherited the estate held by the deceased. They called upon the
defendants to furnish names and addresses of other heirs and legal
representatives. Further they called upon the defendants to make the
payment of Rs.25 lacs being the outstanding principal amount due and
payable together with interest of 18% p.a. from 01/08/2017 till the
date of payment. Further they called upon the defendants to disclose
the assets of the said deceased. The postal packets (Ex.7 and 8) are
placed on record which shows that the defendants refused the service
and therefore it is deemed service.
6. The contention of the Ld.Counsel for the plaintiffs is that
agreement stipulates that Gala no.3, Ground floor, 231-B, Weavers
Building, Maulana Azad Road, Madanpura, Mumbai was the property
owned by deceased. It has been inherited by the defendants and
therefore the defendants are liable to pay the amount. The
notice(Ex.6) issued by the plaintiffs itself contemplates that the
plaintiffs are not aware about all the legal heirs and representatives of
the deceased, so they called upon the defendants to provide all the
information regarding all the legal heirs and representatives of the
plaintiffs. Merely the plaintiffs issuing notice to the defendants will not
be sufficient to consider that the defendants are legal heirs and
representatives of the deceased. The defendants did not respond to the
summons issued to them and therefore the matter was proceeded
exparte. If at all it is considered that defendants avoided the
proceedings it does not mean that they are legal heirs and
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representatives of the deceased. It is for the plaintiffs to prove it by
leading cogent evidence to establish the fact that the defendants are the
only legal heirs and representatives of the deceased. In case, the
defendants are legal representatives of the deceased, then in that
eventuality also they cannot be held liable for the transaction which the
plaintiffs had with the deceased. Neither they were privy to the
contract nor they consented for the discharge of the liability of the
deceased. The contention of the plaintiffs is that the defendants have
inherited the estate left by the deceased. Merely recital in the
agreement that the above mentioned Gala no.3, Ground floor, 231-B,
Weavers Building, Maulana Azad Road, Madanpura, Mumbai was
owned by deceased Ibrahim Chougule would not be sufficient. There is
no material on record to establish that said property belongs to
deceased and same was inherited by the defendants, therefore they are
liable to pay the amount which deceased was under obligation to pay
to the plaintiffs by virtue of the agreement (Ex.5). Therefore the claim
of the plaintiffs against the defendants for the amount of
Rs.29,25,342.47/- is not established in the absence of proof of
defendants being legal heirs and legal representatives of deceased and
they inherited the estate left by deceased; Thus, the plaintiffs are not
entitled for the reliefs claimed. Hence, I answer point no.1 in the
affirmative, point nos.2 to 4 in the negative.
Point no.5
7. In view of the above discussion, and findings to point nos.1
to 4, the suit is liable to be dismissed. Hence, it is expedient to pass
following order:-
ORDER
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1. Suit is dismissed.
2. Plaintiffs to bear their own costs.
25/02/2021 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 25/02/2021
Transcribed on: 03/03/2021
Signed on : 04/03/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
04/03/2021 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 25/02/2021
Judgment and order signed by P.O. 04/03/2021
Judgment/order uploaded on 04/03/2021
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