Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.46/2021
MHCC010054112020 Presented on : 02/12/2020
Registered on : 22/01/2021
Decided on : 23/08/2023
Duration : 02Y 08M 23D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.12
SUMMARY CIVIL SUIT NO.46 OF 2021
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.
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] ..Plaintiff
V/s.
1.
2.
YOGESH BHAGARAM ADHALGE
an adult Indian Inhabitant, working for gain
with LIC of India, H. A. Department, 3rd floor,
451851, MDO-IV, Yogakshema, Mumbai- 400 021
and residing at E/6/28, Jeevan Shanti Colony,
Santacruz (W), Mumbai – 400 054.
DINKAR ANTU RAVIDHONE
an adult Indian Inhabitant, working for gain
with I. G. Mint, Mumbai, Coining Department,
S. B. Road, Fort, Mumbai – 400 023.
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..Defendant
(Deleted as per
order dated
29/09/2021)
Appearance :-
Learned Advocate Divya Jain for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 23/08/2023.
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No.46/2021
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.95,566/- under the bill of exchange. The plaintiff has come with the
case that it paid Rs.60,000/- to the defendant No.1 who drew bill of
exchange on 29/06/2017, directing the defendant No.2 to pay to the
plaintiff, a sum of Rs.60,000/- on demand. The bill of exchange was
accepted and delivered by defendant No.2 to the plaintiff on the same
day. On 29/07/2017, plaintiff presented the bill of exchange to the
defendant No.2 and demanded to pay the amount under bill of
exchange, but the defendant No.2 did not pay. The plaintiff
immediately informed the defendant No.1, who neglected to pay.
Thereafter, on 18/11/2019, plaintiff issued notice to the defendants
through advocate to pay the amount, but they avoided to pay. It is its
contention that the defendants are jointly and severally liable to pay
the amount of Rs.60,000/- alongwith interest at the rate of 18% per
annum, hence, this suit.
2 The writ of summons was served upon the defendant
No.1, but he failed to appear before the Court. On 29/09/2021,
plaintiff filed application vide Exhibit-06 for deleting the name of
defendant No.2. Therefore, as per the order in
roznama dated
29/09/2021, suit proceeded ex-parte against defendant No.1 and
name of defendant No.2 is deleted from the array of defendants.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
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No.46/2021
POINTS FINDINGS
1 Does the plaintiff prove that the
defendants have executed the bill of
exchange of Rs.60,000/- ?
Affirmative
2 Does the plaintiff prove that it is entitled
to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on three
documents under list (Exhibit-08). Heard learned advocate for
plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit-07) alongwith documents as per list (Exhibit-08). On
perusal of bill of exchange, it reveals that it bears signatures of the
defendants. Inconsequence of failure to pay the amount under the bill
of exchange, the plaintiff has issued a notice on 18/11/2011. Thus, the
plaintiff is entitled for recovery of amount under the bill of exchange.
It is established that the defendants have executed the bill of exchange
in favour of plaintiff, therefore, there is no reason to disbelieve the
contentions of plaintiff, which remains unchallenged. Hence, suit
deserves to be decreed as per the provisions of Order XXXVII Rule 2(3)
of the Code of Civil Procedure.
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No.46/2021
6 There is nothing on record to show that the defendant
No.1 has ever paid any amount under the bill of exchange. His absence
and omission to appear before the Court on being served with the writ
of summons shows that he has no substantial defence and he has
admitted the claim of plaintiff. Therefore, the plaintiff is entitled to
recover the amount under the bill of exchange.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant No.1,
however, I am of the view that it is exorbitant rate of interest. No
doubt the plaintiff has suffered loss in business and profit, due to
failure to repay the amount by the defendants. Had it been paid to the
plaintiff as per demand, it would have invested and would have earned
profit therefrom. Therefore, I am of the view that the plaintiff is
entitled for interest at the rate of 9% per annum from the date of
default i.e. notice of advocate dated 18/11/2019, till its full
realisation. In view of above discussions, I answer point No.1 in
affirmative and point Nos.2 and 3 in partly affirmative against
defendant No.1.
8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, proceed to
pass the following order :-
ORDER
1. Summary Civil Suit No.46/2021, is hereby partly
decreed with costs.
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No.46/2021
2. Plaintiff is entitled to recover an amount of
Rs.60,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice issued by
the advocate of plaintiff on 18/11/2019, till its full
realisation, from defendant No.1.
3. Decree be drawn up accordingly.
4. Court fees, if any, be refunded as per rule.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 23/08/2023 C.R. No.15
Dictated on : 23/08/2023
Typed on : 23/08/2023
Signed on : 23/08/2023
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“Certified to be true and correct copy of the original signed order”.
25/08/2023
at about 12.30 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 23/08/2023
Order signed by Hon'ble Judge on : 23/08/2023
Order uploaded on : 25/08/2023
at about 12.30 p.m.
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