Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.593/2018
Received on : 16.04.2018
Registered on : 12.04.2018
Decided on : 30.03.2019
Duration : Y M D
00 11 15
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 593 OF 2018
CNR NO.: MHCC010050022018
Ramchand Atmaram Nagpal
Indian Inhabitant of Bombay, Age : 65 years,
Having his address at 405A, Neelkanth, 98,
Marine Drive, Mumbai – 400 002. ...Plaintiff
Versus
1. Jinaam Fashion World
Is a Partnership Firm having address at :
BLKA, Sunmill Compound,
Opp Dena Bank, Lower Parel West,
Mumbai – 400 013
2. Mr. Jitendra Mulji Gada
Age : not known; Occ: Business
Having address as : Red Springs Mills,
Flat No.3401, G.D. Ambedkar Marg,
Near Wadala Telephone Exchange,
Dadar East, Mumbai – 400 014.
3. Mr. Dharmendra Mulji Gada
Age : not known; Occ: Business
Having address as : Red Springs Mills,
Flat No.3401, G.D. Ambedkar Marg,
Near Wadala Telephone Exchange,
Dadar (East), Mumbai – 400 014.
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4. Mrs. Sushila Dharmendra Gada
Age & Occ : Not known
Having address as : Red Springs Mills,
Flat No.3401, G.D. Ambedkar Marg,
Near Wadala Telephone Exchange,
Dadar East, Mumbai – 400 014.
5. Mrs. Anila Jitendra Gada
Age & Occ : Not known; Having address as :
Red Springs Mills, Flat No.3401,
G.D. Ambedkar Marg, Near Wadala Telephone
Exchange, Dadar East, Mumbai – 400 014 ….Defendants.
Appearances:
Advocate Rawal for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 30th MARCH, 2019.
[ J U D G M E N T ]
Allegations of plaintiff in short is as under :
1. Plaintiff has stated that the defendants requested him to raise
funds to the value of Rs.27,00,000/, to which he agreed upon on the
defendants signing documents accordingly in his favour. Plaintiff has
further stated that the interest and repayment schedule were mutually
agreed between him and defendants, as the defendants had expressed
their inability to repay the entire amount of Rs.27,00,000/ at once.
Plaintiff has further stated that on 24.05.2017 the defendant No.1 for
valuable consideration drew one demand Bill of exchange on defendant
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Nos. 2, 3 4 and 5 in the sum of Rs.27,00,000/ in favour of him and
Geeta R. Nagpal payable to either or survivor. The said Bill of exchange
was accepted by defendant Nos. 2, 3, 4 & 5 for payment when said bill
of exchange was presented. Plaintiff has further stated that the
defendant No.1 had mutually agreed to pay and paid interest for six
months. Plaintiff has further stated that the amount was paid to the
defendant No.1 by him by Payee's Account Cheque No. 000900 dated
24.05.2017 drawn on Bank of Baroda (Marine Drive Branch ) as under :
Cheque
No.
Cheque
date
Name Amount in Rs.
000900 24.05.2017 Jinnam Fashion World 27,00,000/
2. Plaintiff has further stated that the amount of interest was paid
by the defendant No.1 for six months by payee's account cheque. The
defendant also deducted TDS on the interest amount. Plaintiff has
further stated that as per repayment schedule, which was mutually
agreed upon, defendant No.1 started making repayments in small
amounts accordingly and paid him Rs.18,00,000/ in total in his
account. Hence a total amount of Rs.18,00,000/ was received by him
towards repayment of the amount advanced to the defendants under
suit bill of exchange. The details of which are mentioned herein below :
Sr.
No.
Date Payment amount in Rs. Mode of Payment
1. 27.06.2017 Rs.4,50,000.00 RTGS
2. 27.07.2017 Rs.4,50,000.00 NEFT
3. 13.10.2017 Rs.2,00,000.00 NEFT
4. 18.10.2017 Rs.1,00,000.00 NEFT
5. 23.10.2017 Rs.1,50,000.00 NEFT
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6. 17.11.2017 Rs.4,50,000.00 NEFT
3. Plaintiff has further stated that the suit Bill of exchange was
thereafter presented to defendant Nos. 2, 3 4 & 5 for repayment of the
balance amount of Rs.9,00,000/ and thereafter to defendant No.1 for
payment of the balance amount of Rs.9,00,000/ but all of them
dishonoured the said bill of exchange by non payment and promised to
pay the balance amount within short time. Plaintiff has further stated
that subsequently defendant No.1 issued 2 cheques of the same date i.e.
18.01.2018 drawn on ICICI Bank, Lower Parel Branch, of Rs.4,50,000/
each in favour of him towards repayment of the balance amount i.e.
Rs.9,00,000/. Plaintiff has further stated that all of the defendants
assured that the said cheques will be cleared hence the same were
deposited by him. On depositing the 2 cheques issued by defendant
No.1 towards balance repayment, the same were dishonoured by Bank
by nonpayment with bank memo “Insufficient Funds”. Plaintiff has
further stated that ultimately by his Advocate's letter dated 01.03.2018
called upon defendants to pay the balance amounts of Rs.9,00,000/
alongwith accrued interest but till today the defendants have not paid
the balance amount. Plaintiff has further stated that all the defendants
have received the said notices. Plaintiff has further stated that inspite of
the receipt of the said notices neither of the defendants have paid the
balance amount nor have replied to the said notice. Plaintiff has further
stated that there is due and payable by the defendants to him the sum
of Rs.9,54,000/ as per the Particulars of Claim. Therefore, plaintiff
filed the present suit.
4. Defendant Nos. 1 to 5 failed to appear in the suit, therefore, suit
has proceeded exparte against all the defendants.
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5. Heard the Ld. Advocate for the plaintiff.
6. Following points arise for determination and their findings
followed by reasons are as stated below:
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.9,54,000/ from
defendants along with future interest
@ 18% p. a. on the sum of
Rs.9,00,000/ from the date of filing
of the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
7. Plaintiff has filed evidence affidavit of himself below Exh.5.
Plaintiff relied upon the following documents as documentary evidence
which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.9 Original Bill of Exchange dated 24.05.2017
2. Exh.10 Dishonoured Cheques dated 18.01.2018
Alongwith Bank Memos of Dishonoured Cheques
AS TO POINT NOS. 1 AND 2:
8. Plaintiff has filed evidence of himself in the form of affidavit
below Exh. 5 and stated that the defendants requested him to raise
funds to the value of Rs.27,00,000/, to which he agreed upon on the
defendants signing documents accordingly in his favour. Plaintiff has
further stated that the interest and repayment schedule were mutually
agreed between him and defendants, as the defendants had expressed
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their inability to repay the entire amount of Rs.27,00,000/ at once.
Plaintiff has further stated that on 24.05.2017 the defendant No.1 for
valuable consideration drew one demand Bill of exchange on defendant
Nos. 2, 3 4 and 5 in the sum of Rs.27,00,000/ in favour of him and
Geeta R. Nagpal payable to either or survivor. Plaintiff has further
stated that the said Bill of exchange was accepted by defendant Nos. 2,
3, 4 & 5 for payment when said bill of exchange was presented. Plaintiff
has further stated that the defendant No.1 had mutually agreed to pay
and paid interest for six months. The amount was paid to the defendant
No.1 by him by Payee's Account Cheque No. 000900 dated 24.05.2017
drawn on Bank of Baroda (Marine Drive Branch ) as under :
Cheque
No.
Cheque
date
Name Amount in Rs.
000900 24.05.2017 Jinnam Fashion World 27,00,000/
9. Plaintiff has further stated that the amount of interest was paid
by the defendant No.1 for six months by payee's account cheque. The
defendant also deducted TDS on the interest amount. Plaintiff has
further stated that as per repayment schedule, which was mutually
agreed upon, defendant No.1 started making repayments in small
amounts accordingly and paid him Rs.18,00,000/ in total in his
account. Hence a total amount of Rs.18,00,000/ was received by him
towards repayment of the amount advanced to the defendants under
suit bill of exchange. The details of which are mentioned herein below :
Sr.
No.
Date Payment amount in Rs. Mode of Payment
1. 27.06.2017 Rs.4,50,000.00 RTGS
2. 27.07.2017 Rs.4,50,000.00 NEFT
3. 13.10.2017 Rs.2,00,000.00 NEFT
4. 18.10.2017 Rs.1,00,000.00 NEFT
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5. 23.10.2017 Rs.1,50,000.00 NEFT
6. 17.11.2017 Rs.4,50,000.00 NEFT
10. Plaintiff has further stated that the suit Bill of exchange was
thereafter presented to defendant Nos. 2, 3 4 & 5 for repayment of the
balance amount of Rs.9,00,000/ and thereafter to defendant No.1 for
payment of the balance amount of Rs.9,00,000/ but all of them
dishonoured the said bill of exchange by non payment and promised to
pay the balance amount within short time. Plaintiff has further stated
that subsequently defendant No.1 issued 2 cheques of the same date i.e.
18.01.2018 drawn on ICICI Bank, Lower Parel Branch, of Rs.4,50,000/
each in favour of him towards repayment of the balance amount i.e.
Rs.9,00,000/. Plaintiff has further stated that all of the defendants
assured that the said cheques will be cleared hence the same were
deposited by him. On depositing the 2 cheques issued by defendant
No.1 towards balance repayment, the same were dishonoured by Bank
by nonpayment with bank memo “Insufficient Funds”. Plaintiff has
further stated that ultimately by his Advocate's letter dated 01.03.2018
called upon defendants to pay the balance amounts of Rs.9,00,000/
alongwith accrued interest but till today the defendants have not paid
the balance amount. Plaintiff has further stated that all the defendants
have received the said notices. Plaintiff has further stated that inspite of
the receipt of the said notices neither of the defendants have paid the
balance amount nor have replied to the said notice. Plaintiff has further
stated that there is due and payable by the defendants to him the sum
of Rs.9,54,000/ as per the Particulars of Claim.
11. Plaintiff has produced all the corroborating documents which are
Original Bill of Exchange and Dishonoured Cheques alongwith Bank
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Memos of dishonoured cheques on record as documentary evidence.
The oral evidence of plaintiff is corroborated by documentary evidence.
Defendants have failed to challenge all the allegations in the plaint and
evidence of plaintiff. Due to all these circumstances, plaintiff has proved
that he is entitled to get sum of Rs.9,54,000/ from all defendants
jointly.
12. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
amount of Rs.9,00,000/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 to 5 are jointly directed to pay amount of
Rs.9,54,000/ to plaintiff along with interest @ 9% p.a. on the
principal sum of Rs.9,00,000/ from the date of filing of the suit till
its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 30.03.2019. City Civil Court,
Gr. Bombay.
Dictated on : 30.03.2019
Transcribed on : 30.03.2019
Signed on : 30.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11.04.2019 At 3:16 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
30.03.2019
Judgment/Order signed by P.O. on 30.03.2019
Judgment/Order uploaded on 11.04.2019
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