Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 (J- Comm.Suit 23/19)
Received on : 20.4.2019
Registered on : 17.6.2019
Decided on : 30.1.2020
Duration: .. yrs. 09 Months 10 days.
CNR No.MHCC010044822019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO. 23 OF 2019.
NIKETA NARESHKUMAR NEGANDHI, )
Aged 61 yrs., of Mumbai, Indian Inhabitant, )
having her address at 595 Krishna Raj Gully M.J. )
Market, Mumbai 400 002 )
through her Constituted Attorney )
Mr. Nareshkumar H. Negandhi, age 66 yrs. )
Mumbai. )...Plaintiff
Versus
1. GREEN WOOD )
A Proprietary Firm having its address )
The Agicha's, 2nd Floor, 6th Master Vinayak )
Road, Bandra(W), )
Mumbai 400 050 and also )
at 49, Victoria Road, Mustafa Bazar, )
Mumbai 400 010. )
Gamdevi, Mumbai 400 007 )
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2. ABHISHEK SATISH AGICHA )
Age and full name not known, )
of Mumbai an adult Indian Inhabitant )
Having his address at Flat No.1 & 2, )
8th Floor, 16th Avenue, Plot No.59, )
Cats' E /70, 16th Road, )
Khar(W), Mumbai 400 052 )
3. GAUTAM PRAKASH AGICHA )
Age and full name not known, of Mumbai, )
adult, Indian Inhabitant, )
carrying on business as a Sole Proprietor )
in the name and style of “Green Wood” )
at and from The Agicha's, 2nd Floor, )
6th Master Vinayak Road, )
Bandra(W), Mumbai 400 050. )...Defendants
Appearance:
Adv. Mr. Ramesh Jain for plaintiff.
None for defendant. Suit proceeded exparte.
CORAM : HHJ Shri V.V. Vidwans
(Commercial Court)
C. R. No.03.
DATE : 30.01.2020.
JUDGMENT
1. This is a Suit filed by plaintiff as Summary Suit under Order
XXXVII Rule 2 of CPC. However considering the nature of the claim of the
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plaintiff in the suit, it came to be treated as “Commercial Suit” as per
provisions of Sec.2 (1)(c) of Commercial Courts Act, 2015.
2. Before institution of the suit, the matter had gone for pre
institution mediation u/s.12A of Commercial Courts Act and after issuance
of notice to the defendants, they had failed to turn up before Mediation
Centre/ District Legal Services Authority, (DLSA) Mumbai and therefore, a
Nonstarter Report dated 12.4.2019 was received. Thereafter the suit was
instituted.
3. After issuance of writ of summons to the defendants, same was
duly served on the defendant no.1 by RPAD as per postal acknowledgment
at Exh.B, which is placed on record. However, an envelope containing writ
of summons and copy of plaint sent to the defendants no.2 and 3 was
returned back, as unclaimed, vide Exh.C filed on record. As per affidavit of
service dated 23.8.2019, defendants no.1 and 3 were duly served with the
writ of summons but they remained absent before the court. While
defendant no.2 though tried to be served by register post, however,
envelope had been returned as unclaimed. Therefore, defendant no.2 is
also deemed to have been served with the writ of summons and as per
order sheet dated 13.9.2019, the suit has proceeded exparte against
defendant nos. 1 to 3.
4. The plaintiff has led documentary and oral evidence in the
suit, as per affidavit of Nareshkumra Negandhi at Exh.2 and list of
documents at Exh.3.
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5. In the first Case Management Hearing stage before trial, on
28.1.2020, I had heard Ld. Counsel for the plaintiff on exhibiting the
documents and I had marked and exhibited the documents filed with the
list Exh.3, with reference to the evidence affidavit filed by the plaintiff. The
document at Sr. No.1 being Bill of Exchange in original duly stamped with
revenue stamp and signed by authorized signatory of defendant no.1, it is
marked and exhibited as Exh.5. The document at Sr. No.2 is an office copy
of letter dated 13.2.2018 issued by Counsel for the plaintiff to the
defendants by way of notice in the suit. It bears signature of Counsel for
the plaintiff in original and it is marked and exhibited as Exh.6. Document
at Sr.No.3 is photocopy of bank statement. It is marked and exhibited as
'Art.X' for the purpose of identification. On the same day, Ld. Counsel for
the plaintiff has submitted Statement of Truth with reference to the
pleadings in the plaint and documents filed and relied upon by the plaintiff
in the suit. It is marked as Exh.4 and taken on record as a part of
procedural compliance as per provisions of Commercial Courts Act, 2015.
6. I have heard oral submissions of Ld. Counsel Mr. Jain for the
plaintiff in the suit.
7. Following points arise in the suit for determination and I have
recorded my findings against them with reasons as under :
POINTS :
1. Whether the plaintiff has proved suit transaction with the
defendants i.e. the plaintiff had extended financial help/
assistance to the defendants by way of business loan and
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defendants had agreed to repay the same along with
interest @ 12% p.a. ?
2. Whether the plaintiff has made out a case for passing
exparte decree in the suit as prayed ?
3. What order and decree ?
FINDINGS:
1. Yes
2. Yes.
3. Suit decreed with costs.
REASONS
As to Points no. 1 and 2 :
8. Ld. Counsel for the plaintiff, in the course of argument
submitted that, the plaintiff is an adult, residing at the address given in the
cause title of the suit and has filed present Suit through her Constitute
Attorney Mr. Nareshkumar Negandhi. Defendant no.1 is a Firm and
defendant no.3 is Sole Proprietor of defendant no.1. Defendant no.2 is
known acquaintance of the plaintiff and other defendants and involved in
the suit transaction.
9. Ld Counsel for the plaintiff submitted that, on 23.5.2016, the
defendants had approached the plaintiff and requested for extending
financial assistance by way of business loan and as defendants were known
to the plaintiff she had accepted the request of the defendants and had
given business loan of Rs.10,00,000/ to the defendants by cheque no.
000166 dated 23.5.2016 drawn on HDFC Bank, Mumbai. On the same day,
the defendants had executed a Bill of Exchange for an amount of
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Rs.10,00,000/, which was handed over to the plaintiff through defendant
no.2. It is the case of the plaintiff that, the defendants had paid to the
plaintiff interest on the business loan amount @ 25% p.m. till 28.8.2017.
Thereafter, the defendants had requested the plaintiff to reduce the rate of
interest, as they were facing financial crisis. Considering the business
relations, the plaintiff had accepted the request of the defendants to some
extent and reduced the rate of interest by 1% p.m. Thus, the defendants
have lastly paid installment of interest upto 27.11.2017 on the loan
amount of Rs.10 Lac @ 1% p.m, but thereafter they have failed to pay the
interest on the principal amount.
10. Under the above circumstances, the plaintiff had presented the
Bill of Exchange to the defendant no.2 and demanded the amount of
principal sum of Rs.10 Lac, but defendant no.2 had dishonoured the said
demand. This fact was also brought to the notice of the defendant no.1,
but in vain. Considering the financial difficulty of the defendants, the
plaintiff had waited for sometime for positive response from the
defendants, but of no use. Under the above circumstances, the plaintiff was
compelled to issue a letter on 13.2.2018 to the defendants through her
advocate calling upon them to repay the loan amount of Rs.10,00,000/ @
accrued interest. The said letter is received by the defendants, but they
have failed to comply with the demand of the plaintiff. Copy of said letter
dated 13.2.2018 is annexed with the plaint vide Exh.B. Hence, this Suit.
11. For proving her claim in the case, the plaintiff has relied upon
evidence affidavit of her Constituted Attorney Mr. Nareshkumar Negandhi
at Exh.2, supported by documents filed with the list at Exh.3 and proved
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the documents at Exhs.5 and 6. The document at Sr. No.1 is Bill of
Exchange dated 23.5.2016 and document at Sr.No.2 is the letter issued by
the Counsel for the plaintiff to the defendants dated 13.2.2018, making
demand for the due amount. Ld. Counsel for the plaintiff has relied upon
averments made in the plaint and above said documents and oral evidence
on record and submitted that, the plaintiff has proved the financial
transaction between the plaintiff and the defendants regarding giving of
business loan in the sum of Rs.10,00,000/ and defendants had agreed to
repay the loan amount and the loan amount was to carry interest @ 12%
p.a. On the strength of evidence affidavit of PW Nareshkumar Negandhi,
the plaintiff has proved documents on record. As per paragraphs 9 and 10
of the plaint, the plaintiff has claimed recovery of Rs.10,00,000/ form the
defendants as principal amount along with accrued interest @ 12% p.a.
12. After going through the pleadings in the plaint and documents
as well as oral evidence on record, I find that the plaintiff has made out a
case of passing exparte decree against defendants as the plaintiff's claim in
the suit has gone unchallenged and documentary as well as oral evidence
laid by the plaintiff has not been rebutted by the defendants. I do not find
any fact or circumstance on record to disbelieve the case of the plaintiff.
Hence, I answer points no.1 and 2 in the affirmative and hold that, the
plaintiff is entitled for decree in the Suit. Hence, I proceed to pass
following order :
ORDER
1. Suit decreed with costs.
2. The defendants no. 1 to 3 shall jointly and severally pay
to the plaintiff a sum of Rs. 10,00,000/ as principal loan
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amount along with accrued interest @ 12 percent p.a.
from 27.12.2017 till actual realization of due amount.
3. The defendants shall pay the decretal sum to the plaintiff
within one month from today, failing which the plaintiff
shall be entitled to seek recovery of the same with the
assistance of the court by taking recourse to the
execution proceedings.
Decree shall be drawn up accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date : 30.1.2020 Gr. Bombay (CR 03)
Dictated on : 30.1.2020
Transcribed on : 31.1.2020
Draft given to HHJ on 31.1.2020
Signed on : 01.2.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 1.2.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 30.1.2020
Judgment/ order signed by P.O on 1.2.2020
Judgment/ order uploaded on 1.2.2020
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