Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 Summ. Suit No.570/2019
Filed on : 03.05.2019
Registered on : 06.06.2019.
Decided on : 10.02.2020
Duration : Year-00 Month-08 Days-05
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 570 OF 2019
(CNR NO.MHCC01-004877-2019)
Exhibit-20
Mr. Rajiv Anant Bagayatkar
303/304, B-Wing, Mt. Alphs Bhakti Park,
Anik Wadala Link Rd. Wadala(E),
Mumbai - 400 037. ….Plaintiff
Versus.
M/s. Nirmal Life-Style (Mulund) P. Ltd.
Corporate office address :
Nirmal Lifestyle Ltd.,
Multiplex Building, 3rd Floor,
L.B.S. Road, Mulund,
Mumbai - 400 080. ...Defendant.
SUIT FOR RECOVERY OF RS.22,93,155/-
Appearance:
Mr. Shikant Shinde, Advocate for the plaintiff.
Exparte against Defendant.
CORAM :- HER HONOUR JUDGE
SABIHA. G. SHAIKH (C.R. No.59)
DATE :- 10th February, 2020.
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Judgment 2 Summ. Suit No.570/2019
-: JUDGMENT :-
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
The facts of the case are as under :
2. The defendant is a builder and developer by profession. The
plaintiff proposed to develop integrated township being developed
by Nirmal Lifestyle Limited. On inquiry with the defendant, the
plaintiff agreed to purchase the flat from the defendant for
consideration of Rs.1,02,79,429/-. It is pleaded by the plaintiff that
he has paid amount of Rs.5,00,000/- to the defendant vide cheque
dated 01.12.2013 and Rs.15,55,886/- vide cheque dated 22.06.2014.
The defendant did not issue any allotment letter even after paid of
20% of payment of consideration for the said flat. The defendant
awarded to arrange the site visited when requested by the plaintiff.
Therefore, the plaintiff has suspicion on defendant and visited the
construction side. On the visit of the plaintiff, he did not find any
foundation work on the said place. The plaintiff transpired that the
defendant has fraudulently collected total sum of Rs.20,55,886/-
from him. Therefore, the plaintiff intimated defendant that he is
not interested in the said project and called upon defendant to
refund the said amount with interest. Therefore, defendant issued
seven cheques to the plaintiff. The said cheques were dishonored
when deposited by the plaintiff with his banker. Inspite of issuance
of legal notice dated 18.03.2019 by the plaintiff, the defendant
failed to refund the amount of Rs.20,55,886/- to him. According to
the plaintiff, as on the date of the suit amount of Rs.22,93,155/- is
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Judgment 3 Summ. Suit No.570/2019
due and payable by the defendant. Hence, plaintiff is constrained
to file the suit for recovery of Rs.22,93,155/- alongwith interest.
3. The suit summons were duly served on the defendant but he
failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
4. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. What is due and payable from
the defendant to the plaintiff ?
A] If yes, what would be the
rate of interest?
Amount of
Rs.22,93,155/- with
interest
@ 12% per annum.
2. What order and decree? As per final order.
-: REASONS :-
5. The plaintiff has filed his affidavit at Exhibit-3. In order to
prove the case of the plaintiff filed following documentary
evidence.
Exhibit.
No.
Description of documents
6 Email dated 22.06.2014 by the defendant in respect
of payment schedule of proposed flat & Certificate
under 65(B) as per Indian Evidence Act.
7 Letter dated 07.07.2014 issued by defendant.
8 Payment receipt No.2375 dated 09.12.2013.
9 Payment receipt No.2392 dated 22.06.2014.
10 Cancellation of request letter dated 22.07.2017 by the
plaintiff.
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Judgment 4 Summ. Suit No.570/2019
Exhibit.
No.
Description of documents
11 Cancellation of letter dated 30.07.2017 by the
defendant.
12 Dishonored of cheque No.030752 and remark of
dishonored.
13 Dishonored of cheque No.030753 and remark of
dishonored.
14(colly) Dishonored of cheque No.030754 & cheque No.030756
and remark of dishonored.
15(colly) Dishonored of cheque No.030755 & cheque No.030757
and remark of dishonored.
16 Dishonored of cheque No.030758 and remark of
dishonored.
17 Legal notice dated 18.03.2019.
18 RPAD Slip & postal acknowledgment.
AS TO POINT NO.1:
6. All the documents produced by the plaintiff at list
Exhibit-6 to 18 go to establish that plaintiff has paid
Rs.20,55,886/- to defendant. The documents further prove that the
amount of Rs.22,93,155/- is due and payable to the plaintiff from
defendant. But, defendant failed to pay total amount of
Rs.22,93,155/-. The documents at list Exhibit-6 to 18 go to
establish that defendant is liable to pay Rs.22,93,155/- to the
plaintiff on the date of filing of the suit. In this background, it is
held that plaintiff is entitled to recover sum of Rs.22,93,155/- from
the defendant.
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Judgment 5 Summ. Suit No.570/2019
7. The plaintiff has claimed 15% per annum on the
principal amount. As per section 34 of the Code of Civil Procedure
the rate of interest may exceed 6% per annum, if the transaction is
commercial and there is no contract pertaining to the same
between the parties. In the present case the transaction is a
commercial one and there is express contracts existing between the
parties as to the rate of interest vary per annum. Therefore, rate of
interest at the rate of 12% per annum would be just and proper to
be awarded on the principal sum adjudged i.e. amount of
Rs.22,93,155/-. Hence, point no.1 is answered in the affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.22,93,155/- from the
defendant with interest at the rate of Rs.12% per annum from the
date of filing of the suit till its realization. Plaintiff is also entitled
to recover cost of the suit from the defendant. Hence, in answered
to point no.2, I proceed to pass the following order :
: ORDER:
1. The defendant shall pay Rs.22,93,155/- (Rs. Twenty
Two Lakh Ninety Three Thousand One Hundred Fifty
Five Only) to the plaintiff with interest at the rate of
12% per annum from the date of filing of the suit till
its realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
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Judgment 6 Summ. Suit No.570/2019
4. Court fee, if any, be refunded as per the rules.
(Smt S.G. Shaikh)
Ad-hoc Judge
City Civil Court, Gr. Bombay
Date : 10.02.2020
Typed on : 10.02.2020.
Signed on : 10.02.2020.
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Judgment 7 Summ. Suit No.570/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
10.02.2020 5.45 p.m. Mr. Tushar P. Kuwar
Name of the Judge H.H.J. SABIHA G. SHAIKH.
Ad-hoc Judge.
(Court Room No.59)
Date of pronouncement of Order 10.02.2020
Order signed by P.O. on 10.02.2020
Order uploaded on 10.02.2020
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