Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 38/19. 1 Ex-parte Judgment.
MHCC010048972019
Presented on : 30-04-2019
Registered on : 26-06-2019
Decided on : 12-02-2021
Duration : 1 years, 9 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 38 OF 2019
Exh.21.
Mumtaz Haiderali Manekia, )
Age: 64 years, of Mumbai Indian )
Inhabitant, residing at C/o. Khairunissa )
Sadruddin Bilawala, “Mazda Apartments”, )
‘A’ Wing, 3rd floor, 65/67, Bhulabhai Desai )
Road, (formerly known as Warden Road), )
Mumbai – 400 026, Maharashtra )...Plaintiff
Versus
1. D.S. Kulkarni & Co., )
Age not known )
a registered partnership firm having )
its principal place of business at )
8/2, Ravi Building, )
Sadashiv Peth, Pune – 30, )
as well as at Bengali Maharaj Road, )
Balgandharv, Pune – 411 002 )
2. Sakharam Sadashiv Kulkarni, ) (Deceased/Deleted)
Age not known )
of Pune Indian Inhabitant, residing )
at 2, Somwar Peth, Pune – 11 )
3. Deepak Sakharam Kulkarni, )
Age not known )
of Pune Indian Inhabitant, )
residing at 80, Meghana Society, )
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Comm.Suit No. 38/19. 2 Ex-parte Judgment.
Sokhomagar, Pune – 9 )
4. Phadke Hemant Neelkanth, )
Age not known )
of Pune Indian Inhabitant, )
80, Meghana Society, )
Sokhomagar, Pune – 9 )
5. R. J. Krishna, )
Age not known )
of Pune Indian Inhabitant, )
carrying on profession as )
Chartered Accountant residing at )
B-11, New Meenal Co-operative )
Housing Society Ltd., 884/7, )
Karve Road, Pune – 4 )
6. Jyoti Deepak Kulkarni, )
Age not known )
of Pune Indian Inhabitant, )
residing at 80, Meghana Society, )
Tulsibagwale Colony, Pune – 9 )
7. Makarand Sakharam Kulkarni, )
Age not known )
of Pune, Indian Inhabitant, residing )
at Vanashree, 44/7, Navsahyadri )
Co-operative Housing Society )
Ltd., Pune – 29 )...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 12th FEBRUARY, 2021.
Mr. Giriraj, Advocate for Plaintiff.
None for Defendants No.1, 3 to 7. (Ex-parte).
JUDGMENT (EX-PARTE)
This is a suit for recovery of Rs.33,74,521/- (Rupees Thirty-
three Lakhs Seventy-four Thousand Five Hundred Twenty-one Only)
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Comm.Suit No. 38/19. 3 Ex-parte Judgment.
with future interest at the rate of 12% p.a. based on refund of loan
undertaking with cheque.
Plaintiff’s case is narrated as follows :
2. Plaintiff is a businessman, deals in the business of “Glass
Centre” at Chakala, Mumbai. Defendant no.1 is a partnership firm.
Defendants no.2 to 7 are partners of defendant no.1. In view of
discussion and deliberation between plaintiff and defendant, plaintiff
has agreed to advance the loan to the defendant with interest at the
rate of 12% p.a. Accordingly as mentioned in loan receipts and terms
discussed in para 3 to 5 of the plaint, plaintiff has disbursed the loan of
Rs.25,00,000/- (Rupees Twenty-five Lakhs Only) to the defendant by
cheque on 07/10/2008. As an undertaking, defendant office has
executed loan repayment receipt with acknowledgement on
05/01/2009. It was undertaken to refund the loan with interest agreed
at the rate of 12% p.a. The cheque for refund of amount was issued by
the defendant on same day. As mentioned in paragraphs no.6 to 12,
aforesaid loan was extended from time to time on 03/04/2009,
07/07/2009. Defendant has issued the cheque no. 99402 of the Bank
of Maharashtra of Rs.25,00,000/- (Rupees Twenty-five Lakhs Only) in
favour of plaintiff. It was lastly extended upto April 2016 with an
undertaking by cheque no. 100159. Plaintiff has received the interest
from defendant upto April 2016. Thereafter, despite various demands
defendant is failed to pay the interest and principal amount. Plaintiff
has learnt about criminal charges and cheating of various investors by
the defendant no.3. Hence, this suit.
3. In view of order in roznama dated 18/01/2021 and pursis
vide Exh.7, name of defendant no.2 is deleted. In view of bailiff report,
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Comm.Suit No. 38/19. 4 Ex-parte Judgment.
defendant no.2 is no more.
4. In view of service affidavit vide Exh.6, summons is duly
served on defendants no.1, 3 to 7 by publication in two newspapers.
Defendants no.1, 3 to 7 are failed to appear. Hence, suit is proceeded
ex-parte against them.
5. In support to the plaint, perused statement of truth
submitted by plaintiff vide Exh.8 and 9. PW 1 Sadruddin Bilawala
deposed before the Court vide Exh.10. It is important to note, plaintiff
has paid the principal amount of Rs.25,00,000/- (Rupees Twenty-five
Lakhs Only) by cheque dated 07/10/2008. Defendant no.1 has
undertaken to repay the amount alongwith interest at the rate of 12%
p.a. The repayment was agreed by the defendant vide cheque as
mentioned in loan undertaking on the letter-head of defendant no.1
vide Exh.13. Perused other loan receipts vide Exh.14 to 17.
6. On perusal of loan receipts vide Exh.14 to 17, it was
extended from time to time and defendants have undertaken to repay
the loan. Perused the cheque no. 99402 dated 07/07/2016 for the
amount of Rs.25,00,000/- (Rupees Twenty-five Lakhs Only). Plaintiff
has described the particulars of the claim vide Exh.19. According to
plaintiff, defendant has paid the interest upto April 2016. The interest
from April 2016 is not paid by the defendant. Absence of all defendants
infer that they admit the suit claim. In result, suit deserves to be
decreed as prayed.
7. There is agreed rate of interest at the rate of 12% p.a.
Hence, suit is decreed as prayed. Hence, the order :
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Comm.Suit No. 38/19. 5 Ex-parte Judgment.
- ORDER -
1. Suit is decreed with cost against defendants no.1, 3 to 7.
2. Defendants no.1, 3 to 7, jointly and severally, shall pay an
amount of Rs.33,74,521/- (Rupees Thirty-three Lakhs
Seventy-four Thousand Five Hundred Twenty-one Only)
with interest @ 12% p.a. from the date of suit till
realization, within two months from the date of decree.
3. Decree shall be drawn accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 12/02/2021. Mumbai.
1. Dictated on : 12/02/2021.
2. Transcribed on : 15/02/2021.
3. Signed on : 17/02/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/02/2021. 11.22 a.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 12/02/2021.
Judgment/Order signed by P.O. on 17/02/2021.
Judgment/Order uploaded on 18/02/2021.
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