Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010057332019 Presented on 11-06-2019
Registered on 26-06-2019
Decided on 21-08-2023
Duration 04Y: 02M: 10D
Exhibit 08
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 636 OF 2019
Sureshkumar Jaychandji Jain, Age 67 Yrs. ]
of Mumbai an adult Indian Inhabitant ]
Having his address at 30/32, Ramwadi, ]
3rd Floor, Mumbai - 02. ]...Plaintiff
VERSUS
1. Khimji Lakhamshi Shah, Age not known ]
of Mumbai an adult Indian Inhabitant ]
Having his address at C/o. M/s. Eurowood ]
Lumber Pvt. Ltd. Flim City Road, ]
Gokuldham, Opp. Sudha Hospital, ]
Malad (East), Mumbai – 400 097. ]
2. M/s. Eurowood Lumber Pvt Ltd ]
A company registered under the Companies ]
Act having its address at Flim City Road, ]
Gokuldham, Opp. Sudha Hospital, ]
Malad (East), Mumbai – 400 097. ]...Defendants
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
Defendants absent -(Ex-parte).
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CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 21/08/2023.
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount
of Rs.1,45,777.88/-ps. Brief facts of the plaintiff’s case may be
summarized as under:
2. The plaintiff contends that for valuable consideration of
Rs.1,02,258/- received from the plaintiff, the defendant No.1 drew a
Bill of Exchange on 01-04-2014, directing defendant No.2 to pay to
the plaintiff the sum of Rs.1,02,258/- on demand. Said Bill of
Exchange was accepted by defendant No.2 on the same day.
3. The plaintiff further contends that on 02-05-2014 when
he presented the Bill of Exchange to defendant No.2 and demanded
the amount, he dishonored the same by the non-payment. Therefore,
the plaintiff informed the same to defendant No.1 and demanded the
amount to both the defendants. However, both the defendants failed
to pay the amount.
4. The plaintiff further contends that after making repeated
and frantic demands for payment, defendant No.1 issued a cheque
dated 15-11-2016 for Rs.1,02,258/- bearing No.568718 in favour of
the plaintiff. Thereafter the said cheque was presented to his banker
for encashment, but it was dishonoured on 27-12-2016 with the
remark “Funds insufficient”. Therefore, the plaintiff issued a demand
notice dated 03-03-2017 through his advocate and called upon the
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defendants to pay the amount Rs.1,02,258/- with accrued interest.
Inspite of receipt of notice, the defendants failed to pay the amount.
According to the plaintiff, the defendants are liable to pay the amount
Rs.1,45,777.88/- ps. and further interest @ Rs.18% on the principal
sum of Rs.1,02,258/- from the date of filing the suit till its full
realization. Hence, the present suit.
5. The defendants were served with the writ of summons.
The plaintiff has filed affidavit of service at Exh.2. However, they
failed to cause appearance and hence the suit proceeded ex-parte
against them by the order dated 16-07-2022.
6. In support of claim, the plaintiff filed his affidavit of claim
at Exh.3 and reiterated his contention of recovery of
Rs.1,45,777.88/-ps. along with further interest on the principal
amount of Rs.1,02,258/- at the rate of Rs.18% p.a. The plaintiff has
filed and relied upon following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.5 Bill of Exchange dated 01-04-2014.
2 Exh.6 A Cheque dated 15th November, 2016 and Memo of
dishonoured.
3 Exh.7 Plaintiff's advocate's letter dated 03-03-2017 along
with acknowledgment of serving the said letter
7. To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
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Sr.
No.
Points Findings
1. Whether the plaintiff is
entitled to recover amount of
Rs.1,45,777.88ps.from
defendants?
If yes, at what rate interest?
Partly yes.
Entitled to Rs.1,02,258/- with
interest @ Rs. 6% p.a. from date of
filing of the suit.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 & 2-
8. The plaintiff has filed his claim affidavit in support of his
contention of receipt of Bill of Exchange for consideration of
Rs.1,02,258/-. His oral testimony is supported by the original Bill of
Exchange dated 01-04-2014. The plaintiff enjoys presumption under
section 118(a) of Negotiable Instruments Act, 1881, which supports
the contention of the plaintiff that the present Bill of Exchange was
issued for the valuable consideration of Rs.1,02,258/-.
9. As noted above, the plaintiff has filed on record the
document of Bill of Exchange dated 01-04-2014, which reveals that
the defendant No.1 executed the Bill of Exchange for valuable
consideration of Rs.1,02,258/-. The said Bill of Exchange bears
signature of defendant No.1 as a drawer and defendant No.2 as an
acceptor. The plaintiff on oath has deposed that the said Bill of
Exchange come to be dishonoured by non-payment at the hands of
the defendants. This document shows that the said amount was
payable on demand.
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10. It appears that the plaintiff had demanded the amount of
Bill of Exchange to both the defendants by way of notice dated 03-03-
2017. The said notice was sent on the address of the defendants. As
the suit proceed ex-parte against the defendants, no contra evidence
has come on record. Therefore, the fact of execution of Bill of
Exchange for valuable consideration, can not be disputed. Both the
defendants failed to appear despite service of suit summons. Provision
of Rule 2(3) of order XXXVII of CPC, raises the presumption that
owing to failure of defendants to cause their appearance, the
defendants admit the contents and the allegations in the plaint. It is
settled position of the law that in view of provision of section 32 of
N.I.Act, defendant No.1 being drawer and defendant No.2 being the
acceptor of the Bill of Exchange, both are liable to repay the amount
to the plaintiff. Hence, I hold that the plaintiff is entitled to recover
the principal amount of Rs.1,02,258/- from the defendants on the basis
of Bill of Exchange dated 01-04-2014 and they both are jointly and
severally liable to pay it to the plaintiff.
11. It may be seen that the plaintiff has applied the interest at
the rate of Rs.18% p.a. on the principal amount of Rs.1,02,258/- from
the date of dishonoured i.e. 27-12-2016 till filing the suit, and claimed
the interest Rs.43,519.88/- on the principal amount. But, it is
important to note that the transaction between the plaintiff and the
defendant is appearing purely a hand loan transaction without any
interest. The cheque dated 15-11-2016 of Rs.1,02,258/- without
including any amount of interest was given by the defendant No.1 for
repayment of the hand loan, which is confined to the quantum of the
loan amount. Therefore, the plaintiff cannot be held entitled to any
interest on Rs.1,02,258/- till filing the suit. The plaintiff has claimed
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further interest at the rate of Rs.18% p.a. on principal amount, but this
rate of interest is appearing excessive. Therefore, having regard to the
nature of transaction and the provision of section 34 of the CPC, I am
of the view that granting the interest at the rate of Rs.6% p.a. on the
principal amount from the date of filing the suit would be just and
proper. Hence, I hold that the plaintiff is entitled to interest at the rate
of of Rs.6% p.a. on the principal amount of Rs.1,02,258/- from the
date of the suit till its full realization. Hence, I answer point No.1
accordingly. In the result, in an answer to point No.2, I proceed to
pass the following order.
O R D E R
1) Summary Suit No.636/2019 is hereby partly decreed with
costs.
2) The defendants shall pay an amount of Rs.1,02,258/-
(Rupees One lakh, Two Thousand, Two Hundred and Fifty Eight
Only) to the plaintiff along with interest at the rate of Rs. 6%
p.a. from 11-06-2019, date of filing of suit till its full
realization.
3) Both the defendants are jointly and severally liable to pay the
decreetal amount.
4) The plaintiff is entitled to get refund 2/3rd of court-fees paid by
him.
5) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date: 21-08-2023 Court Room No.61
Mumbai.
Dictated directly on: 21-08-2023
Corrected & signed on : 22-08-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22-08-2023 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.) C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
21-08-2023
JUDGMENT/ORDER signed by P. O. on 22-08-2023
JUDGMENT/ORDER uploaded on 22-08-2023
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