Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Rev. Pet. 138-18 1
Presented on 13.04.2018
Registered on 25.04.2018
Decided on 22.03.2019
Duration Yrs. M. Days
11 09
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
REVIEW PETITION NO. 138 OF 2018
IN
S.C. SUIT NO. 6643 OF 2004
(CNR NO.MHCC010048602018)
Exh.
Housing and Urban Development )
Corporation Ltd., a body corporate )
Constituted under the Companies Act)
1956, having its registered office at )
Hudco Bhawan, India Habitat Centre )
Lodhi Road, New Delhi and having )
Mumbai Regional Office at Block 1, )
2nd Floor, MMRDA Bldg., Bandra )
Kurla Complex, Bandra (E), )
Mumbai – 400 051. ) ...Petitioner
(Original Plaintiff)
Vs.
1. Mr. Baban Shankar Bhosale ) (Deleted Since deceased)
Residing at : E110, SuKirti )
Co.operative Housing Society Limited)
Opp. J.K. Raymonds, Samata Nagar, )
Thane (W) – 400 606. )
1 (a) Smt. Shobhana Baban Bhosale )
Wife of the deceased Baban Shankar )
Bhosale, the Defendant abovenamed )
Residing at : E110, SuKirti )
Co.operative Housing Society Limited)
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Judgment in Rev. Pet. 138-18 2
Opp. J.K. Raymonds, Samata Nagar, )
Thane (W) – 400 606. )
1 (b) Shri. Rajesh Baban Bhosale )
Son of the deceased Baban Shankar )
Bhosale, the Defendant abovenamed )
Residing at : E110, SuKirti )
Co.operative Housing Society Limited)
Opp. J.K. Raymonds, Samata Nagar, )
Thane (W) – 400 606. )
1 (c) Shri. Rupesh Baban Bhosale )
Son of the deceased Baban Shankar )
Bhosale, the Defendant abovenamed )
Residing at : E110, SuKirti )
Co.operative Housing Society Limited)
Opp. J.K. Raymonds, Samata Nagar, )
Thane (W) – 400 606. )
2. Manab K. Saniyal )
Residing at : 402, Sai Anand Bhavan )
Samata Nagar, Thane (W) – 400 606.)
3. Ramesh S. More ) (Deleted Since deceased)
Residing at : 3, Kubal Niwas, )
Shashtri Nagar, Pokhran Road, )
Thane (W) – 400 606. )
3 (a) Saraswati Sitaram More )
Legal heir and representative of )
deceased Defendant No.3 )
Residing at : 3, Kubal Niwas, )
Shashtri Nagar, Pokhran Road, )
Thane (W) – 400 606. )
4. M/s. Shakri Enterprises, )
Having office at : 1, Narayan Bhuvan )
Represented by Mr. Kishore Ajmera )
Gangawadi, Agra Road, Ghatkopar (W)
Mumbai – 400 086. ) .. Respondents
(Original Defendants)
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Judgment in Rev. Pet. 138-18 3
CORAM : Her Honour Judge
Smt. Pushpa N. Rao
Ad Hoc Asstt. Judge
C.R.No. 32.
DATE : 22nd March, 2019.
Shri. Tanvir Shaikh, Advocate for Petitioner (Original Plaintiff).
Defendant Nos. 1 (a) to 1 (c), 2, 3 (a) and 4 Exparte.
: JUDGMENT :
. Petitioner (original plaintiff) taken out this petition for
review of the judgment and decree dtd. 13.03.2018 with a direction
that plaintiff is entitled for interest @ 10% p.a. from the date of
institution of suit till realization.
2. It is the contention of the petitioner that issues are framed
in the matter on 04.07.2013 and plaintiff tendered the affidavit of
evidence of P.W. 1 Rohinjath on 29.11.2013. It has been observed by
this court that suit is of 2004 but affidavit of evidence is filed in 2013.
There is no explanation on behalf of plaintiff for late filing affidavit of
evidence of P.W. 1, therefore interest was granted @ 8% p.a. from the
date of order and not from the date of suit and moreover in the
operative order, rate of interest has been mentioned 10% p.a. from the
date of order. Therefore, the order dtd. 13.03.2018 is apparently
erroneous on the face of record, hence taken out this Review Petition.
3. Inspite of service of notices of this Review Petition on the
defendant nos. 1 (a) to (c), 2, 3 (a) and 4 failed to appear before the
court, hence Review Petition proceeded exparte against them.
4. Considering the averment in the Review Petition, following
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Judgment in Rev. Pet. 138-18 4
points are arise my for determination and I recorded my findings as per
the reasons given below :
SR.
NO.
POINTS FINDINGS
1. Whether the mistake or error
apparent on the face of record ?
In the Affirmative.
2. Whether petitioner is entitled for
review of the judgment and
decree dtd. 13.03.2018 ?
As per final order.
3. What Order?
5. Heard learned Advocate Shri. Tanvir Shaikh for petitioner.
R E A S O N S
POINT NOS. 1 AND 2 :
6. I have perused the judgment and decree dtd. 13.03.2018.
I have also perused the roznama. As per roznama, issues are framed in
the matter on 04.07.2013. Unless and until issues are framed plaintiff
cannot tendered their affidavit of evidence on record. In the instant
matter after framing of issues, plaintiff tendered the affidavit of
evidence of Shri. Rohinjath P. (P.W.1) on 17.01.2014. No doubt suit is
of 2004. But this court while recording the reason only consider the
year of filing of suit and the date of tendering the evidence of plaintiff.
Therefore, it was mentioned that late filing of affidavit of evidence of
plaintiff interest was granted from the date of order and not from the
date of suit. So far as this aspect is concerned, this is an error apparent
on the face of record and which strikes on mere looking at the record
and would not require any long drawn process of reasoning on points.
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Judgment in Rev. Pet. 138-18 5
Therefore, the findings recorded by this court for refusal of interest
from the date of suit to the plaintiff is found to be erroneous. For that
purpose petitioner has placed reliance on – Smt. Meera Bhanja Vs.
Smt.Nirmala Kumari Choudhury, AIR 1995 SUPREME COURT 455.
7. Ld. Advocate Shri. Tanvir Shaikh for the petitioner placed
reliance on
1. Jagdish Rai & Brothers Vs. Union of India, (1999) 3 Supreme
Court Cases 257.
2. K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Another, 2000
(5) Bom. C.R. 178.
Petitioner being aggrieved by the judgment and decree dtd.
13.03.2018 from which an appeal is allowed by the Code of Civil
Procedure, but from which no appeal has been preferred by the
petitioner. Original defendant no.1 had availed the housing loan of
Rs.4,00,000/ from the plaintiff corporation. Original defendant no.1
had executed necessary security documents for repayment of loan in
favour of plaintiff. Defendant Nos. 2 and 3 were stood as a guarantor
for the repayment of loan for defendant no.1.
8. After perusal of the citations placed on record by the
petitioner the ratio laid down in the above citations cannot be disputed.
The error is apparently on the face of record, therefore that error is
required to be corrected therefore Review Petition is maintainable.
9. In view of above, discussion I answered Point Nos. 1 and 2
accordingly and proceed to pass the following order.
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Judgment in Rev. Pet. 138-18 6
: ORDER :
1. Review Petition No.138/2018 is allowed with costs.
2. Petitioner is entitled to recover the amount of Rs.4,81,159/
(Rupees Four Lakhs Eighty One Thousand One Hundred Fifty Nine
Only) with interest @ 10% p.a. on principal sum of Rs.4 Lakhs (Rupees
Four Lakhs) from the date of suit till entire realization.
3. Respondent Nos. 1 (a) to 1 (c), 2, 3 (a) and 4 are jointly or
severally liable to pay Rs.4,81,159/ (Rupees Four Lakhs Eighty One
Thousand One Hundred Fifty Nine Only) with interest @ 10% p.a. on
principal sum of Rs.4 Lakhs (Rupees Four Lakhs Only) from the date of
suit till entire realization.
Date : 22.03.2019 (Pushpa N. Rao)
Ad Hoc Asstt. Judge
Bombay City Civil Court
Greater Mumbai.
Dictated direct typed on computer on: 22.03.2019.
Signed by HHJ on : 22.03.2019.
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Judgment in Rev. Pet. 138-18 7
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 25.03.2019 at 12.30 pm
NAME OF THE STENOGRAPHER : P.P.Parab
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
22.03.2019
Judgment/Order signed by P.O. on 22.03.2019
Judgment/Order uploaded on 25.03.2019
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