Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010049962018
Presented on 16-04-2018
Registered on 03-10-2019
Decided on 27-09-24
Duration Year Month Days
06 05 11
CNR No. MHCC010049962018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMARY SUIT NO.959 OF 2019
Mr. Partik R. Goradia
Age: 49, Occupation : Business
Residing at 403, Hormuzd Apt.,
131, August Kranti Marg,
Kemps Corner,
Mumbai – 400 036. ...Plaintiff.
Versus
1. Zeus Housing & Construction Ltd
A Company registered under the
provisions of Company Act and
having its registered office at 7/49,
Surya Sadan, Sion Main Road,
Sion (West),
Mumbai – 400 022.
Through its Director,
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Defendants.
2. Mr. Ashit B. Doshi
Age – Not known
at 7/49,
Surya Sadan, Sion Main Road,
Sion (West),
Mumbai – 400 022.
Appearances:
Ld. Adv. Dipika h/f Aparna Shinde For the plaintiff
None For defendants.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE
(C.R.No.83)
DATED: 27th September, 2024
J U D G M E N T
(Ex-parte)
(Suit under Order XXXVII OF C.P.C.)
This is a summary suit filed under Order XXXVII of the
Code of Civil Procedure for recovery of an amount of Rs.68,80,000/-
with interest @ 24% p.a.
2. In short the case of the plaintiff is that :
The plaintiff is a businessman trading in metal, whereas
defendant No.1 is a Construction Company of which defendant No.2 is
the director and friend of plaintiff. The defendant No.2 was facing
financial inadequacy and requested for hand loan with promise to
return the amount with interest @ 24% p.a. Considering the difficulty
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and the relations, plaintiff gave him Rs. 10,00,000/- on 12.07.2011
vide cheque No. 264498, Rs. 25,00,000/- on 06.02.2014 through
cheque No.100853. Again in the month of May-2014 defendant No.2
approached and demanded Rs.75,00,000/- Which plaintiff deposited
Rs.50,00,000/- through RTGS, (cheque No.101002) on 20.05.2014 and
Rs.25,00,000 on 21.05.2014 vide cheque No.101003. Thus in all he
gave Rs.1,10,00,000/-. The defendant No.2 refunded an amount of
Rs.75,00,000/- in three installments dated 26.05.2014, 27.05.2014,
05.09.2014, where as an amount of Rs.45,00,000/- remain to be paid.
3. The defendant No.2 informed that defendant No.1 was in
process to file an application before Company Law Board seeking
extension of time in repayment of unsecured deposit /loan. The reply
was filed by the plaintiff wherein the same was objected. Thereafter,
defendant No.2 issued two cheques of Rs.15,00,000/- and
Rs.25,00,000/- bearing cheque No.42766 and 42774 of Bank of India,
Ballard Estate Branch towards repayment of the unpaid ammount. The
cheques were deposited on 23.04.2015 for encashment, however, it
returned with remark “Account Blocked”. Legal notice was isssued on
05.01.2018, however inspite of receipt of notice defendant failed to
repay the amount. Hence, present suit.
4. The defendants were served by way of substituted service,
but they failed to appear and contest the suit. Hence, by an order dated
20.02.2023, suit was directed to proceed Ex-parte against defendants.
5. From the pleading of plaintiff, following points arise for my
consideration and determination to which I have given my findings
alongwith reasons as under:
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Sr.
No.
Points Findings
1. Whether plaintiff is entitled for recovery of
an amount of Rs.40,00,000/- alongwith
interest @ 24% p.a. from the defendants ?
Yes. with interest
@ 9% p.a.
2. What order and decree ? As per final order
REASONS
6. In order to prove the suit claim, plaintiff filed his evidence
affidavit vide (Exh.3). The documentary evidence consists of statement
of account (Exh.5), Copy of letter issued by defendand No.1 to
Company Law Board (Exh.06), cheques (Exh.07), Bank Memos
(Exh.08), Legal notice along with postal receipts and acknowledgment
(Exh.9).
AS TO POINT NO.1.
7. Heard Adv. Vartak for plaintiff and gone through the entire
documents filed on record. It is case of the plaintiff that, he had
advanced a handloan of Rs.1,10,00,000/- to defendants considering the
childhood friendship between plaintiff and defendant No.2. The
defendant No.2 repaid an amount of Rs.65,00,000/- from time to time
and an amount of Rs.45,00,000/- remain unpaid. To repay the same,
defendant No.2 issued two cheques of Rs.15,00,000/- and
Rs.25,00,000/- which on deposit were dishonoured. Inspite of service
of legal notice, defendants failed to repay prompting to file the suit. In
order to prove the same, plaintiff filed his evidence affidavit in which
the contents of the plaint are reiterated. The plaint is supported by the
documents. As the suit proceeded ex-parte, the plaint, evidence
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affidavit of plaintiff and the documents on record have gone
unchallenged.
8. Perusal of the statement of account (Exh.05) reveals the
amounts were paid by the plaintiff by cheques and RTGS and entry is
clearly visible. To repay the balance amount, two cheques (Exh.07 )
were given and the bank Memos (Exh.08) reveals they were
dishonoured with remark “Account Blocked”. Thus the unchallenged
testimony of plaintiff and umpteen documents filed on records prove
advancement of friendly handloan by plaintiff to defendant No.2 which
was partly repaid and for the remaining amount of Rs.45,00,000/- two
cheques of Rs.40,00,000/- given were dishonoured. Thus there is
liability on the part of the defendants to pay the said amount to
plaintiff. Hence, plaintiff is entitled for recovery of Rs.40,00,000/-. As
regards the rate of interest, admittedly the pleading itself shows it was a
handloan between two childhood friends. Thus it do not come within
the definition of commercial transaction. However, considering the
huge amount and the delay on the part of defendants to fullfill the
promise, I am of the view that interest @ 9%p.a. would be just and
proper rate of interest. Hence, the point No.1 is answered as parly
affirmative.
AS TO POINT NO.2:
9. In view of my finding of point No.1, suit deserves to be
decreed. Defendants failed to keep the promise of refund of amount
forcing the plaintiff to knock the doors of the Court. Therefore, I am of
the view that while decreeing the suit, costs of it is necessary to be
saddled upon defendants. In the result, I proceed to pass following
order.
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ORDER
1. The Summary Suit No.959 of 20119 is decreed with costs.
2. The defendants are directed to pay an amount of Rs.40,00,000/-
(Rs. Fourty Lakhs only) to the plaintiff with interest @ of 9% p.a.
from 05.09.2014 till its realization.
3 The decree be drawn up accordingly.
4. R & P be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:27-09-2024 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 27-09-2024
Transcribed on : 01-10-2024
checked on : 03-10-2024
Signed on : 03-10-2024 (N. B. Lavte)
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.10.2024 at 01.50 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri. N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
27.09.2024
Judgment/order signed by P.O. on 03.10.2024
Judgment/order uploaded on
due to non working of cis
03.10.2024
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