Final Order 1

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.381/21 1 Judgment
MHCC010045702018 Presented on : 06042018
Registered on : 04062018
Decided on : 16042022
Duration : Y M D
4 0 10
BEFORE THE CITY CIVIL COURT, GR. BOMBAY
( Court No.14 )
(Presided Over by S. U. Hake)
COMMERCIAL SUIT NO.381 OF 2021
(SUMMARY SUIT NO.559 OF 2018)
Exh.6
BHAVNABEN KISHOREKUMAR SADARIA
@ JAIN, Age 48 years of Mumbai
An adult Indian Inhabitant having
Address at 79, Suthar Chawl, 4th Floor,
Zaveri Bazar, Mumbai 400 002. ..Plaintiff
VERSUS
1. GIMMICKS GLOBAL
A Firm having
it's address at Asha Colony, Juhu Tara
Road, Opp. Sea Princess Hotel, Juhu,
Mumbai 400 049.
2. PRADEEP KISHINCHAND HIRANI
Age not known an adult Indian Inhabitant
carrying on business as A Sole Proprietor
in the name and style of "Gimmicks Global"
at and from Asha Colony,
Juhu Tara Road, Opp. Sea Princess Hotel,
Juhu, Mumbai 400 049. ..Defendants
Ld. Advocate Ramesh Jain for plaintiff.
Ld. Advocate Amol V. Kumeria for defendants.
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Com. Suit No.381/21 2 Judgment
JUDGMENT
( Delivered on 16th day of April, 2022 )
Suit is for recovery for an amount of Rs.6,42,849.31/
alongwith future interest.
Briefly stated, plaintiff's case, is as under :
2. Defendant No.2Pradeep Hirani is a sole proprietor of
defendant No.1firm. On 24.06.2014, defendants approached plaintiff
and requested for extending financial assistance by way of business
loan. Plaintiff and defendants were well known to each other.
Therefore, plaintiff accepted defendants’ request. Plaintiff paid an
amount of Rs.5,00,000/ by cheque bearing No.374233 dated
24.06.2014 drawn on Syndicate Bank, Mumbai. On the same day,
defendants executed bill of exchange directing defendant No.2 to pay
an amount of Rs.5,00,000/ to plaintiff on demand. Defendants agreed
to pay interest at the rate of 1% p.m. Accordingly, defendants paid
interest on the aforesaid amount till 27.10.2015 after deducting TDS
amount to plaintiff by cheques.
3. It is further submitted that on 28.10.2015, plaintiff
presented said bill of exchange with defendant No.2 and made demand
of Rs.5,00,000/. However, defendant No.2 dishonoured the same.
Defendants requested plaintiff to wait for some time. Thereafter,
defendants issued cheque of Rs.5,00,000/ dated 27.10.2015 drawn on
HDFC Bank Ltd., Santacruz branch, Mumbai. Plaintiff presented said
cheque for encashment, however, said cheque was dishonoured on
27.01.2016. Plaintiff issued notice dated 05.02.2018 through advocate
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Com. Suit No.381/21 3 Judgment
calling upon defendants to pay an amount of Rs.5,00,000/ with
interest. Defendants received said notice, but, failed to make the
payment.
4. After service of summons, defendants appeared before the
Court. Thereafter, plaintiff has taken out summons for judgment
No.297 of 2018. Defendants, by filing reply affidavit, applied for leave
to defend the suit. As per order in summons for judgment, leave to
defend the suit was granted to defendants subject to depositing a sum
of Rs.5,00,000/ within 10 weeks from the date of order i.e.
03.01.2022. Defendants failed to deposit an amount of Rs.5,00,000/
within stipulated period. Therefore, plaintiff, by filing nondeposit
certificate, applied for exparte decree.
5. Heard Ld. advocate for plaintiff. Following points arise for
determination, findings thereon for the reasons to follow, are as under:
Sr. No. Points Findings
1. Does the plaintiff prove that an amount
of Rs.6,42,849.31/ is outstanding
against defendants ?
Proved
2. What order ? Suit is decreed as per
final order.
REASONS
Point No.1.
6. In order to substantiate the claim, plaintiff has filed claim
affidavit of PW1 Bhavnaben Kishorekumar Sadaria @ Jain (Exh.4) and
relied upon original documents filed below list (Exh.5).
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Com. Suit No.381/21 4 Judgment
7. PW1 Bhavnaben has reiterated all the facts pleaded in the
plaint. She testifies that she advanced business loan of Rs.5,00,000/ to
defendants on 24.06.2014 by cheque bearing No.374233 drawn on
Syndicate Bank, Mumbai. Plaintiff has filed on record bank statement
to show that said cheque was realized and an amount of Rs.5,00,000/
is deposited in the account of defendant No.1.
8. PW1 Bhavnaben further testifies that on 24.06.2014,
defendants executed bill of exchange and thereby, directed defendant
No.2 to pay a sum of Rs.5,00,000/. Plaintiff has filed on record
original bill of exchange which shows that defendants directed
defendant No.2 to pay a sum of Rs.5,00,000/ by executing bill of
exchange. Said bill of exchange was accepted by defendant No.2.
PW1 Bhavnaben further deposes that defendants agreed to pay interest
@ 1 % p.m. and accordingly, paid interest upto October, 2015. Bank
statement filed on record supports plaintiff’s contention regarding
payment of interest by defendants.
9. The documents filed on record duly support plaintiff’s
contention regarding advancement of loan of Rs.5,00,000/ to
defendants. From the documents filed on record, it can be also inferred
that defendants agreed to pay interest @ 1% p.m. As stated above,
defendants failed to comply order passed in summons for judgment.
Therefore, matter proceeded exparte. Plaintiff’s claim for an amount of
Rs.6,42,849.31/ is duly supported by documents filed on record.
Therefore, plaintiff’s claim under Order 37 Rule 2 of C.P.C. needs to be
accepted. Thus, plaintiff proves that an amount of Rs.6,42,849.31/ is
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Com. Suit No.381/21 5 Judgment
outstanding against defendants. Point No.1 is answered accordingly.
10. Plaintiff claimed interest at the rate of 12% p.a. from the
date of filing suit till its realization. Rate of interest claimed by the
plaintiff is the rate of interest agreed by defendants. Therefore, taking
into consideration the nature of transaction, plaintiff is entitled to get
interest at the rate of 12% p.a. from the date of filing suit till its
realization. In the result, following order :
ORDER
1. Commercial Suit No.381/2021 is decreed with costs.
2. Defendants shall pay jointly and severally an amount of
Rs.6,42,849.31/ (Rupees Six Lacs Forty Two Thousand Eight Hundred
Forty Nine and paise Thirty One only) alongwith interest @ 12% p.a. on
principal amount of Rs.5,00,000/ to plaintiff from the date of filing suit
till its realization within two months.
3. Court fees be refunded as per (E) Rules framed under Section
11(2) of the Bombay City Civil Court Act, 1948, for the refund of
Institution Fee.
4. Decree thus follow.
( S.U. HAKE )
JUDGE,
Date : 16/04/2022 CITY CIVIL COURT, GR. BOMBAY.
Directly dictated on computer : 16/04/2022
Signed on : 16/04/2022
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Com. Suit No.381/21 6 Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”
18.04.2022 at 01.09 p.m.
UPLOAD DATE AND TIME
(AMIT DATTATRAY SHINDE)
COURT TYPIST, COURT NO.14
Name of the Judge HHJ SHRI S.U. Hake
(COURT NO.14)
Date of pronouncement of
judgment/order
16.04.2022
Judgment/order signed by P.O. on 16.04.2022
Judgment/order uploaded on 18.04.2022
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