Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010057442019
Filed on :11.07.2019
Registered On :26.06.2019
Decided on :03.02.2022
Duration : Y-02/M-06/D-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 633 OF 2019
Exhibit- 08
CNR NO.- MHCC01-005744-2019
Savita Ambalal Jain
Age 52 years
of Mumbai, an Adult, Indian Inhabitant
having her address at Room No. 20, Ground
Floor, Gulam Mohmad Building, Navroji Hill
Road No.7, Dongri, Mumbai- 400 009.
Through C.A Ambalal Jain Aged 53 years
... Plaintiff
V/s.
1.Gajendra Kashiram Joshi
Age not known of
Mumbai, an Adult, Indian Inhabitant
working for gain with B.M.C. G/ North Ward,
N.M. Joshi Marg, Parel Conservancy Dept.,
Mumbai- 400 013. Emp no. 4086367 and
residing at Panchshil Nagar No. 2, Kamgar
Comity, Mata Ramabai Ambedkar Quarters,
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Pipe Line (Sion), Mumbai- 400 022.
And also at 420, Baudh Wadi, Village:
Sohivale,
Taluka Rajapur, Dist. Ratnagiri- 416704.
2. Sachin Ramchandra Kamble
Age not known of Mumbai an adult Indian,
Inhabitant working for gain with B.M.C. K/
East Ward, Aazad Road, Gundivali,
Andheri(east), Mumbai- 400 069. Conservancy
Dept., Emp no. 4071004. Residing at Old
B.D..D Chawl No. 7A/13, S.S. Vaidya Marg,
Naigaon, Dadar, Mumbai- 400 014.
... Defendants
Appearance:-
Mr. Ramesh 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 : 03/02/2022
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 defendants.
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2. The suit claim of the plaintiff is narrated in nutshell as
under:
The defendant no.1 on dtd.24.3.2017 for valuable consideration
of Rs.80,000/- 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.80,000/- 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.80,000/- was advanced to the defendants. 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.80,000/-. The defendants
dishonored the demand of bill of exchange by non payment. Therefore,
the defendants are jointly and severally liable to pay the balance sum of
Rs.80,000/- alongwith interest at the rate of 18% p.a. The plaintiff
issued letter/notice through advocate on 4.3.2019 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.1,08,721.09ps/- 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.1,08,721.09ps/- 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.
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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.1,08,721.09ps/-
with interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.7 i.e the list of documents:
Sr.
No.
Description of documents Exhibits
1 A Bill of Exchange dated 24.3.2017
being Exhibit “A” to the plaint.
Exh. 7/1
2 Plaintiff’s Advocate’s letter dated
4.3.2019being Exh”B” to the plaint
alongwith the postal records in
connection with the transmission
and delivery thereof.
Exh. 7/2
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
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defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.80,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.2 to
pay to the plaintiff or order a sum of Rs.80,000/- on demand and said
bill of exchange has been accepted and delivered by the defendants to
the plaintiff. Further, it reveals from the record that said transaction
took place on dtd.24.3.2017, the notice/letter of demand was issued to
the defendants on dtd. 4.3.2019 and the suit is filed on 11.6.2019. As
such, the plaintiff’s claim in the suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-7
goes to establish that plaintiff has given amount of Rs.80,000/- to the
defendants on bill of exchange. Repayment is not made by the
defendants. The plaintiff is claiming Rs.1,08,721.09ps/- which is the
amount 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.1,08,721.09ps/- to the plaintiff. In this
background, I have arrived at the conclusion that the plaintiff is entitled
to recover sum of Rs.1,08,721.09ps/- from the defendants jointly and
severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.1,08,721.09ps/- 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
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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
defendants are 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.80,000/- . 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.1,08,721.09ps/- from the
defendants jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.80,000/- from the date of filing of the
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.1,08,721.09ps/- (Rs. One
Lakh Eight Thousand Seven Hundred Twenty One and
Nine paise Only) to the plaintiff jointly and severally,
with interest at the rate of 18% per annum on the
principal sum of Rs.80,000/- from the date of filing of
the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
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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 :03.02.2022 Gr. Bombay
Dictated on : 03.02.2022
Typed on : 03.02.2022
Signed on : 03.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.02.2022 2.00p .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
03.02.2022
JUDGMENT/ORDER signed by
P.O.on
03.02.2022
JUDGMENT/ORDER uploaded on 03.02.2022
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