Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010047242019 Presented on 25/04/2019
Registered on 16/11/2021
Decided on 20/08/2024
Duration 05Y: 03M: 25D
Exhibit 19
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 974 OF 2021
Mr. Abdul Wakeel Mohd. Irish Khan ]
Age- 45, Occu-Doctor ]
Residing at Plot No.13/C/10, ]
Road No.10, Baiganwadi, ]
Govandi, Mumbai-400043. ]...Plaintiff
VERSUS
Mr. Shahnwaz Abrari Khan ]
Age:- Adult, Occu-Business, ]
Plot No.29/0/1, Shivaji Nagar, ]
Gowandi, Mumbai, ]
And
Plot No.30-K-1, Road No.5, Shivaji ]
Nagar, Gowandi, Mumbai-400043. ]
Mr. Riyaz Khan S/o.Ibrahim Khan ]
Adult, Indian Inhabitant ]
Residing at Plot No.36/P/9, Road, No.5, ]
Shivaji Nagar, Govandi, Mumbai-43. ]..Defendants
Appearance :
Ld. Advocate Sajjad H. Patel for the plaintiff.
Defendants absent. (Ex-parte).
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2 SUM SU NO. 974/2021
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 20/08/2024
J U D G M E N T
01] This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (C.P.C.) for recovery of Rs.3,36,750/-
alongwith interest and prayed for further interest from defendants.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per the plaintiff, he is a Doctor by profession.
Defendant No. 1 used to visit his clinic for treatment and therefore, he
knows defendant No.1. In the month of May 2018, defendant No. 1
was in need of financial assistance of Rs. 3,00,000/- for the period of
one year. Therefore, plaintiff advanced an amount of Rs. 3,00,000/- to
defendant No. 1 and he agreed to repay the said amount. It is the
contention of the plaintiff that defendant No. 2 came with defendant
No. 1 and agreed to offer his room, at Plot No. 30/K/1, Road No. 5,
Shivaji Nagar, Govandi, Mumbai- 400043 (in short said room) as
security by executing leave and license agreement in favour of
plaintiff. Even, the plaintiff was also in need of some premises.
Accordingly, defendant No.2 executed leave and license with the
plaintiff. It was further agreed that defendant No.2 will not create
third party interest in the said room till defendant No. 1 refunds all the
loan amount. However, after advancing an amount of Rs. 3,00,000/-
to the defendant No. 1, defendant No. 2 failed to hand over possession
of said room to the plaintiff. Even, defendant No. 1 failed to repay the
said amount. After making repeated requests, defendant No. 1 handed
over 3 cheques bearing No. 042870 dated 15/02/2019, 042872 dated
16/02/2019 and 042873 dated 18/02/2019 for sum of Rs. 70,000/-,
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3 SUM SU NO. 974/2021
Rs. 1,00,000/- and Rs. 1,00,000/- respectively in favour of plaintiff
keeping balance amount of Rs.30,000/-. The said cheques on
presenting in the bank were dishonoured for reason "Insufficient
funds" on 18/02/2019. Therefore, plaintiff issued notice dated
20/02/2019 and called upon defendant No.1 to repay the amount of
dishonoured cheque. However, defendant No.1 failed to repay the loan
amount therefore, plaintiff is entitled for interest at the rate of 18%
p.a. from the defendant No. 1. Hence, this suit.
03] Defendant No.1 is served with the writ of suit summons
and defendant No. 2 has refused to accept summons. The plaintiff has
filed affidavit of service at Exh. 5. Despite service of the suit summons,
the defendants have not caused their appearance and therefore, the
suit proceeded ex-parte against them by the order dated 02/07/2022.
04] In support of claim, the plaintiff filed his affidavit of claim
at Exh. 7 and reiterated his contention for recovery of Rs. 3,36,750/-.
along with the further interest at the rate of 18% p.a. The plaintiff has
filed and relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.10 Original Leave and License Agreement dated
29/05/2018
2 Exh.11 Original Cheque bearing No.042870 dated
15/02/2019
3 Exh.12 Original Cheque bearing No.042872 dated
16/02/2019
4 Exh.13 Original Cheque bearing No.042873 dated
18/02/2019
5 Exh.14 colly. Deposit slip in respect of the said cheques
6 Exh.15 Bank Memo in respect of cheque No.042870
dated 15/02/2019
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4 SUM SU NO. 974/2021
7 Exh.16 Bank Memo in respect of cheque No.042872
dated 16/02/2019
8 Exh.17 Bank Memo in respect of cheque No.042873
dated 18/02/2019
9 Exh.18 Original acknowledged copy of the police
complaint dated 04/01/2019
05] To decide the present suit, following points arose for
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. 3,36,750/-
from defendant? If yes, at what rate
interest?
Partly Yes.
The defendant No. 1 shall
pay to the plaintiff simple
interest on Rs. 2,70,000/- at
the rate of 18% p.a. from
18/02/2019 i.e. date of
dishonour of cheque and
simple interest at the rate of
7% p.a. from 25/04/2019,
the date of filing of suit till its
full realization.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 and 2 :-
06] It is argued on behalf of the plaintiff that he had advanced
an amount of Rs. 3,00,000/- to the defendant No. 1 for a period of one
year. Further, defendant No.2 had executed leave and license in favour
of plaintiff as a security against the said loan to the defendant No.1.
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Defendant No.1 in order to repay the loan amount issued three
cheques which were dishonoured. Therefore, plaintiff had issued
notice to the defendant No. 1 to call upon to make the payment of the
loan amount. Defendant No. 1 failed to repay the loan amount.
Plaintiff has filed original documents on record to prove his
contentions. Therefore, plaintiff is entitled to recover outstanding
amount with interest. Hence, suit may be decreed.
07] Perused plaint, oral and documentary evidence of the
plaintiff. Heard Ld counsel for the plaintiff. As per the contentions of
the plaintiff, defendant No. 1 was his patient and used to regularly
visit his clinic. Further, as he was acquainted with defendant No. 1
and he was in need of financial assistance, plaintiff had advanced an
amount of Rs. 3,00,000/- in the month of May 2018 for a period of
one year. It is pertinent to note that plaintiff has not stated whether he
had paid said amount in cash or by cheque. Even, plaintiff has not filed
any document to support his contention that an amount of
Rs. 3,00,000/- is paid to defendant No. 1. However, it is the contention
of the plaintiff that defendant No. 1 had issued three cheques total
amounting to Rs.2,70,000/- to repay the loan amount keeping balance
amount of Rs. 30,000/-.
08] Further, plaintiff has contended that when said cheques
were presented in the bank, it were dishonoured for the reason
'insufficient funds'. The plaintiff has filed said cheques along with
deposit receipts and bank return memos at Exh.11 to 17 on record.
The defendant No. 1 has not appeared in the matter and challenged
the contentions of the plaintiff. Therefore, his evidence has remained
unchallenged. Further, though plaintiff has not produced any material
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on record to show that he had advanced an amount of Rs. 3,00,000/-
to defendant No.1. However, defendant No. 1 has issued three cheques
in favour of the plaintiff. As per Section 139 of Negotiable Instruments
Act (N.I. Act) that there is presumption that cheques are issued to
discharge legal liability unless contrary is proved. As discussed above,
defendant No. 1 has not appeared and challenged the evidence of the
plaintiff. Therefore, I am of the view that from the oral and
documentary evidence, it appears that plaintiff is entitled to recover
and amount of Rs. 2,70,000/- from the defendant No. 1. Further, as
per Section 80 of N.I. Act, plaintiff is entitled for interest at the rate of
18% p.a. on the cheque amount from the date of dishnour of the
cheques. It is not the contention of the plaintiff that it was agreed that
defendant No. 1 will repay the amount with interest. Therefore,
plaintiff is entitled for an amount of Rs. 2,70,000/- with interest at the
rate of 18% p.a. from 18/02/2019 i.e. date of dishonour of cheque
09] So far as, further interest is concerned plaintiff has
claimed further interest at the rate of 18% p.a. on principal amount
till its realization. As discussed above, there is nothing in written in
respect of the rate of interest between the plaintiff and defendant
No.1. Further, plaintiff is claiming interest at the rate of 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 C.P.C., I am of the view that granting the
interest at the rate of 7% p.a. on the amount of Rs. 2,70,000/- from
the date of filing of suit would be just, proper and reasonable. Hence, I
hold that the plaintiff is entitled to interest at the rate of 7% p.a. on
the amount of Rs. 2,70,000/- from the date of filing the suit till its full
realization.
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10] It is the contention of the plaintiff that defendant No. 2
had executed leave and license at Exh. 10 and to give said room as a
security against the loan advanced to defendant No. 1. The plaintiff
has filed said Leave and License Agreement at Exh. 10 however, it is
not duly registered and therefore, it cannot be read in evidence. Even
otherwise, on perusing said leave and license agreement no where it
appears that the said document is executed to hand over the said room
as a security to the plaintiff. Moreover, there is nothing in writing that
defendant No.2 had agreed not to create third party interest till
defendant No.1 repay the loan. Therefore, the plaintiff has failed to
prove that there is privity of contract between the plaintiff and
defendant No. 2 with respect to loan transaction with defendant No. 1.
Therefore, I am of the view that defendant No.2 is not liable to pay
any amount to the plaintiff. Hence, I answer point No. 1 partly in
affirmative and in answer to point No. 2, I proceed to pass following
order :-
O R D E R
1) Summary Suit No. 974 of 2021 is hereby partly decreed with the
costs.
2) Defendant No. 1 shall pay an amount of Rs. 2,70,000/- (Rupees
Two Lakh Seventy Thousand only) to the plaintiff with interest
at the rate of 18% p.a. from 18/02/2019, i.e. date of dishonour of
cheque
3) Defendant No. 1 shall pay to the plaintiff simple interest on
Rs. 2,70,000/- at the rate of 7% p.a. from 25/04/2019, the
date of filing of suit till its full realization.
4) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
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5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 20/08/2024
Dictated on: 20/08/2024
Corrected & signed on: 21/08/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
21/08/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 20/08/2024
JUDGMENT/ORDER signed by P. O. on 21/08/2024
JUDGMENT/ORDER uploaded on 21/08/2024
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