Final Order 1

Order Details: Other
Pdf Text: Filed on :02.12.2021
Registered On :20.01.2021
Decided on :13.01.2022
Duration :Y-00/M-01/D-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 43 OF 2021
Exhibit-7
CNR NO.- MHCC01-005410-2020
M/s. Otarmal Kantilal & Co.
A registered partnership Firm carrying on
business at Shop No.8, Kalyan Building No.2,
Sadashiv Cross Lane, Kandewadi, Bombay-400
004 through its Partner Mr. Parasmal Otarmal
Jain, Aged about 65 years. ... Plaintiff
V/s.
1. Payal Prabhakr Harmalkar
(Age not known)
an adult Indian Inhabitant,
working for gain with Vodafone Ltd.
Peninusula Corporation Park, Service Delivery,
Ganpatrao Kadam Marg, Lower Parel, Mumbai-
400 013 and residing at Room no. 2, Premila
Sadan, Natwar Nagar, Road No.3, Near Suraja
High School, Jogeshwari (E), Mumbai- 400
060.
2. Vinod K. Shah
Full name and age not known
An adult Indian Inhabitant,
Residing at 2-B-3, G.B Apartment, Saibaba
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2 Summ. Suit No.43/2021
Nagar, Borivali(W), Mumbai- 400 092. .Defendants
Appearance:-
Mrs. Divya Jain Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 13.01.2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under order
XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
Plaintiffs are partnership firm duly registered with the Registrar
of firm . The defendant no.1 on dtd.3.7.2017 for valuable consideration
of Rs.75,000/- received from plaintiff, drew a bill of exchange directing
thereby, defendant no.2 to pay to the plaintiff or Order at Mumbai a
sum of Rs.75,000/- on demand. Said bill of exchange was accepted and
delivered by defendant no.2 to the plaintiff on the same day. The
amount of Rs.75,000/- was advanced to the defendants by the plaintiff.
Accordingly, the defendants executed the bills of exchange in favour of
plaintiff. The plaintiff thereafter presented demand bill of exchange to
the defendants for payment of balance sum of Rs.75,000/- on dtd.
2.8.2017. The defendants dishonored the demand of bill of exchange by
non payment. Therefore, the defendants are jointly and severally liable
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3 Summ. Suit No.43/2021
to pay the balance sum of Rs.75,000/- alongwith interest at the rate of
18% p.a. The plaintiff issued letter/notice through advocate on
16.3.2020 to the defendants calling upon them to pay the outstanding
amount alongwith accrued interest but the defendants failed to comply
with said requisition. The plaintiff averred that the defendants are liable
jointly and severally to pay the outstanding amount of Rs.1,19,310/- as
per the Memo of Particulars.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.1,19,310/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a
from the date of suit till its realization. Hence, this suit.
4. The suit summons were duly served on the defendants.
The defendants failed to appear though served with the suit summons.
Hence, suit is posted for judgment as per order XXXVII Rule 2(3) of
Code of Civil Procedure 1908 judgment against defendants.
5. 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. Whether the plaintiff entitled for
recovery of amount against the
defendants?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,19,310/-with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
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REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.6 i.e the list of documents:
Sr.
No.
Description of documents Exhibits
1 Extract of the Registration of the
Plaintiff’s Firm with the Registrar
of Firm.
Exh. 6/1
2 Bill of Exchange dated 3.7.2017 Exh. 6/2
3 The plaintiff’s Advocates’ letter
dated 16.3.2020 alongwith the
Courier records in respect thereof.
Exh. 6/3
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.75,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.2 to
pay to the plaintiff or order a sum of Rs.75,000/- on demand and said
bill of exchange has been accepted and delivered by the defendant no.2
to the plaintiff. Further, it reveals from the record that said transaction
took place on dtd.3.7.2017, the notice/letter of demand was issued to
the defendants on dtd. 16.3.2020 and the suit is filed on 02.12.2020. As
such, the plaintiff’s claim in the suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-6
goes to establish that plaintiff has given amount of Rs.75,,000/- to the
defendants on bill of exchange. Repayment is not made by the
defendants. The plaintiff is claiming Rs.1,19,310/- which is the amount
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calculated with interest at the rate of 18% p.m till the date of filing of
the suit. Said amount is not repaid by any of the defendants. Therefore,
defendants are liable jointly and severally to pay the outstanding
amount of Rs.1,19,310/- to the plaintiff. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.1,19,310/- from the defendants jointly and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.1,19,310/-and said amount is calculated alongwith
with interest at the rate of 18% p.m till the filing of the suit. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 18% 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 contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
defendant is liable to pay the interest at the rate of 18% p.a. Therefore,
I hold, the rate of interest at the rate of 18% per annum would be just
and proper to be awarded on the principal sum of Rs.75,000/- . Hence,
point no.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,19,310/- from the
defendants jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.75,000/- from the date of filing of the
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suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendants. Hence, in answered to point no.2, I proceed to
pass the following order.
ORDER
1. The defendants shall pay Rs.1,19,310/- (Rs. One Lakh
Ninteen Thousand Three Hundred Ten Only) to the
plaintiff jointly and severally, with interest at the rate
of 18% per annum on the principal sum of
Rs.75,000/- from the date of filing of the suit till its
realization.
2. The defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 13/01/2022 Gr. Bombay
Dictated on : 13.01.2022
Typed on : 13.01.2022
Signed on : 13.01.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.1.2022 4.00 p.m. ( K.M.RANA)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13.1.2022
JUDGMENT/ORDER signed by
P.O.on
13.1.2022
JUDGMENT/ORDER uploaded on 13.1.2022
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