Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Commercial Suit No.24/2019
Received on : 20.04.2019
Registered on : 17.06.2019
Decided on : 31.01.2020
Duration : Y M D
00 09 11
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 24 OF 2019
CNR NO.: MHCC01-004483-2019
Nareshkumar H. Negandhi
Age 66 yrs.
Of Mumbai an adult Indian Inhabitant
Having his address at 595 Krishna Raj
Gully M.J. Market Mumbai – 400 002. ...Plaintif
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.
2. Abhishek Satish Agicha
Age and full name not known
Of Mumbai an adult Indian Inhabitant
Having his address a Flat No.1 & 2, 8th Floor,
16th Avenue, Plot No.59, Cats’ E/70, 16th Road,
Khar (W), Mumbai-400 052.
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3. Gautam Prakash Agicha
Age and full name not known of Mumbai,
adults, Indian Inhabitants, 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.
Appearances:-
Advocate Mr. Ramesh Jain for the Plaintif.
Defendants Ex-parte.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO. 14)
DATED : 31st JANUARY, 2020.
[ J U D G M E N T ]
Story of plaintif in short is as under :-
1. Plaintif has stated that he is of Mumbai an adult Indian
inhabitant, carrying on business as sole Proprietor in the name
and style of Ginilon Synthetics at and from the address
mentioned in the Cause Title and defendant No.1 is a Firm of
which defendant No.3 is a Sole Proprietor and the defendants
having their addresses as mentioned in the Cause Title.
2. Plaintif has further stated that on 23 rd May 2016, the
defendants approached him for extending fnancial assistance
by way of business Loan and upon request of the defendants
and as the defendants were very well known to him, therefore,
he accepted the request of the defendants and by way of
business loan extended fnancial assistance by way of cheque
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for an amount of Rs.15,00,000/- bearing No.000304 dated 23rd
May 2016 drawn on HDFC Bank, Mumbai. The defendants
further aware that the they have duly encashed the said
cheque.
3. Plaintif has further stated that on the same day i.e. on
the 23rd May 2016, defendant No.1 through defendant No.3
being sole Proprietor, for the above valuable consideration viz.
Rs.15,00,000/- received by cheque from him, drew a Bill of
Exchange directing thereby, defendant No.2 to pay to him or
Order, at Mumbai a sum of Rs.15,00,000/- on demand. The
said Bill of Exchange was accepted by defendant No.2 and
delivered by defendant No.2 to the plaintif on the same day.
4. Plaintif has further stated that the defendants from
time to time paid interest through cheque at the rate of 1.25%
per month till 28th August, 2017. The defendants thereafter
requested for reduction in the rate of interest as the
defendants were in fnancial crisis. In view of the defendants
long business relations with him, he exceeded the request of
the defendants and reduced the same to 1% per month. The
defendants thereafter lastly paid interest upto 27th November,
2017 on the said amount of Rs.15,00,000/- @ 1% per month
and thereafter failed to pay any interest and or principal
amount till date.
5. Plaintif has further stated that on 30th November 2017,
he presented the said Bill of Exchange to defendant No.2 and
demanded from defendant No.2 the said amount of
Rs.15,00,000/-. Defendant No.2 dishonoured the same by non-
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payment. He immediately brought the said fact to the Notice
of defendant No.1, and demanded from defendant No.1 the
said amount of Rs.15,00,000/-. Defendant No.1 also failed and
neglected to pay the amount due under the said Bill of
Exchange.
6. Plaintif has further stated that he forwarded his
Advocates’ letter dated 13th February 2018, recording the
above facts and calling upon the defendants to pay the said
amount of Rs.15,00,000/- and accrued interest. The
defendants have duly received the said letter. The defendants
have failed and avoided to comply with the requisitions
thereof and have also not controverted the contents of the
said letter. Therefore, plaintif fled this suit.
7. Defendants failed to appear in the suit, therefore, suit
has proceeded ex-parte against them.
8. Heard the Ld. Advocate for the plaintif.
9. Following points arise for determination and their
fndings followed by reasons are as stated below.
Sr.
No.
POINTS FINDINGS
1. Whether defendant Nos. 1 to 3
are jointly directed to pay Rs.
16,92,821.91 to plaintif along
with interest at the rate of 12%
p.a. on the sum of
Rs.15,00,000/- ?
… In the
affirmative.
2. What order and Decree ? ...As per fnaa order
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REASONS
10. Plaintif relied upon the following documents as
documentary evidence which are as under :
Sr.
No.
Exhibits Particuaars
1. Exh.9 A Bill of Exchange dated 23rd May 2016.
2. Exh.10 Plaintif's Advocates' letter dated 13th February
2018 alongwith the postal records in connection
with the transmission and delivery thereof.
3. Exh.11 Bank Statements and Bank records in
connection therewith.
AS TO POINT NOS. 1 AND 2:
11. Plaintif has adduced evidence of himself below
Exh.7 in the form of afdavit and he has stated in his evidence
that on 23rd May 2016, the defendants approached him for
extending fnancial assistance by way of business Loan and
upon request of the defendants and as the defendants were
very well known to him, therefore, he accepted the request of
the defendants and by way of business loan extended
fnancial assistance by way of cheque for an amount of
Rs.15,00,000/- bearing No.000304 dated 23rd May 2016 drawn
on HDFC Bank, Mumbai. The defendants further aware that
the they have duly encashed the said cheque.
12. Plaintif has further stated that on the same day i.e. on
the 23rd May 2016, defendant No.1 through defendant No.3
being sole Proprietor, for the above valuable consideration viz.
Rs.15,00,000/- received by cheque from him, drew a Bill of
Exchange directing thereby, defendant No.2 to pay to him or
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Order, at Mumbai a sum of Rs.15,00,000/- on demand. The
said Bill of Exchange was accepted by defendant No.2 and
delivered by defendant No.2 to the plaintif on the same day.
13. Plaintif has further stated that the defendants from
time to time paid interest through cheque at the rate of 1.25%
per month till 28th August, 2017. The defendants thereafter
requested for reduction in the rate of interest as the
defendants were in fnancial crisis. In view of the defendants
long business relations with him, he exceeded the request of
the defendants and reduced the same to 1% per month. The
defendants thereafter lastly paid interest upto 27th November,
2017 on the said amount of Rs.15,00,000/- @ 1% per month
and thereafter failed to pay any interest and or principal
amount till date.
14. Plaintif has further stated that on 30th November 2017,
he presented the said Bill of Exchange to defendant No.2 and
demanded from defendant No.2 the said amount of
Rs.15,00,000/-. Defendant No.2, dishonoured the same by
non- payment. He immediately brought the fact of dishonour
of the said Bill of Exchange to the Notice of defendant No.1
and demanded from defendant No.1 the said sum of
Rs.15,00,000/-. Defendant No.1 also failed and neglected to
pay the amount due under the said Bill of Exchange.
15. Plaintif has further stated that he from time to time
demanded from the defendants above named the said amount
of Rs.15,00,000/- and accrued interest. He has further stated
that the defendants above named however failed and avoided
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to pay the same and part thereof, and kept him false and
baseless promises.
16. Plaintif has further stated that thereafter he
approached his Advocate and instructed him to issue Demand
Notice to the defendants calling upon them to pay the said
amount due under the Bill of Exchange within stipulated
period. He has further stated that upon his instructions his
Advocate drafted a Notice dated 13th February 2018 which
addressed to the defendants given in the Notice and the same
was prepared by Advocate in his presence.
17. Plaintif has further stated that he from time to time
demanded from the defendant the said amount of
Rs.15,00,000/- and interest accrued thereon @ 12% per
annum. The defendants, however, failed and neglected to pay
the said sum and any part thereof and kept him on false and
baseless promises.
18. Defendants have failed to take cross-examination of
plaintif and fle written statement. Therefore, all the
allegations of plaintif have remained unchallenged.
19. Plaintif has adduced Bill of Exchange, Plaintif's
Advocates’ letter alongwith the postal records, Bank
Statements and Bank Records on record as documentary
evidence. The oral evidence of plaintif is corroborated by
documentary evidence. Therefore, plaintif has proved that he
is entitled to get sum of Rs.16,92,821/- from the defendants
jointly an severally.
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20. It appears that as per Section 34 of the Code of Civil
Procedure, 1908 it will be proper to direct defendants to give
interest @ 10% p.a. on the amount of Rs.15,00,000/- from the
date of fling of the suit till its realisation. Hence, answer point
No.1 in the afrmative and pass following Order:-
ORDER
1. Suit is decreed with cost.
2. Defendant Nos. 1 to 3 are jointly and severally directed to
pay sum of Rs.16,92,821/- to plaintif along with interest at
the rate of 10% p.a. on the sum of Rs.15,00,000/- from the
date of fling of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(SONALI P. AGARWAL)
Judge,
Date: 31.01.2020. City Civia Court,
Gr. Bombay.
Dictated on : 31.01.2020
Transcribed on : 31.01.2020
Signed on : 31.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.02.2020 At 12:29 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. Agarwaa
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
31.01.2020
Judgment/Order signed by P.O.
on
31.01.2020
Judgment/Order uploaded on 17.02.2020
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