Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Summ. Suit No. 625 of 2019
Presented On : 18.06.2019
Registered On : 18.06.2019
Delivered On : 08.01.2020
Duration : 0Y.06M.21D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.625 OF 2019
(CNR NO. MH CC010057822018)
Exhibit 13
1. Mr. Sitaram P. Salunkhe.
Age.:63 years, Occ.:Advocate,
Address : Room No.201, Shyam Sundar
Sadan, 2nd Floor, S.J. Marg,
Lower Parel (West), Mumbai – 400 013.
2. Mrs. Deval Sitaram Salunkhe.
Age.: 58 years, Occ.: Housewife,
Address: Room No.201, Shyam Sundar
Sadan, 2nd Floor, S.J. Marg,
Lower Parel(West), Mumbai – 400 013. ….Plaintiffs.
..Versus..
Mr. Prakash Ramchandra Yadav,
Age.: 51 years, Occ.: Agriculture,
Address: Kusavade, Post: Helvak,
Taluka : Patan, District – Satara,
Pin Code : 415 207. ...Defendant.
SUIT FOR RECOVERY OF Rs.6,00,000/
Appearance:
Mr.M.P.Pawar, Advocate for the Plaintiff.
Exparte against Defendant.
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CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59)
DATE : 08 th January, 2020
: J U D G M E N T :
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
2. The facts of the suit are summarized as under :
Plaintiff no. 1 is husband of plaintiff no.2 and residing at Room
No.201, Shyam Sundar Sadan, 2nd Floor, S.J.Marg, Lower Parel (West),
Mumbai400 013. The defendant is an agriculturist. The defendant is
the friend of plaintiff no.1. The plaintiff no.1 had applied for loan of
Rs.20,00,000/ to Vijay Cooperative Credit Society Ltd. Mumbai by
mortgaging house of the plaintiff no.1 to the said society. As per
application made by plaintiff no.1, the Vijay Cooperative Credit Society
Ltd had given the loan to plaintiff no.1 on 14.06.2016. After receipt of
the loan, plaintiff no.1 deposited his loan amount in his bank account of
Bank of Maharashtra, Lower Parel (West) Branch, Mumbai – 400 013.
The defendant requested to plaintiff no.1 for friendly loan. Hence,
plaintiff no. 1 & 2 paid the amount of Rs.6,00,000/ by way of cheque
bearing no. 007667 dated 16/06/2016 to the defendant. The
Defendant executed in favour of plaintiffs a promissory note of
Rs.6,00,000/ dated 16 th June, 2016 against the loan of Rs.6,00,000/
received by the defendant from the plaintiff on the the above said date
by the said promissory note. The defendant had promised to pay to
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plaintiffs the said sum of Rs.6,00,000/ with interest thereon, at the rate
of 18% per annum on demand. But, the defendant failed to pay to
plaintiffs inspite of demands, reminders and receipt of the legal notice
dated 07th August, 2018. Hence, plaintiffs are constrained to file the
suit for recovery of the said amount. The total suit claim of plaintiffs for
Rs.6,00,000/.
3. The suit summons were duly served on the defendant but he failed
to appear. Hence, suit is posted for judgment as per order XXXVII Rule
2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my findings
there on are as under for the reasons stated there under :
POINTS FINDINGS
1 What is due and payable from the
defendant to the plaintiffs ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.6,00,000/ with
interest
@ 10 % per annum.
2 What order and decree? Suit is decreed.
R E A S O N S
5. The plaintiff Sitaram Parshuram Solunkhe has filed his affidavit
at Exhibit6. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of
documents
Date
Exhibit8 Original Promissory note
of Rs.6,00,000/
16/06/2016
Exhibit 9 Receipt 16/06/2016
Exhibit 10 Plaintiff's notice and
acknowledgment.
07/08/2018
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Exhibit11 Demand notice of
plaintiff's advocate and
acknowledgment
17/11/2018
Exhibit 12
(collectively)
Plaintiff's final notice and
postal receipt and Track
Consignment report.
06/05/2019
and
09/05/2019
AS TO POINT NO.1 :
6. All the documents produced by the plaintiff at Exhibit8,9, 10, 11
and 12 (collectively) goes to establish that plaintiffs have given amount
of Rs.6,00,000/ to the defendant as loan. The documents further prove
that the amount of Rs.6,00,000/ is due and payable to plaintiffs from
defendant towards the loan amount. The defendant has failed to repay
the said loan amount to plaintiffs. The documents at list Exhibits 8 to
11(Collectively) goes to establish that the defendant is liable to pay
Rs.6,00,000/ to plaintiffs on the date of filing of the suit towards the
said loan amount and therefore the defendant has failed to repay his
loan amount to plaintiffs. In this background, it is held that plaintiffs
are entitled to recover sum of Rs.6,00,000/ from the defendant.
7. The plaintiff has claimed 18% per annum on the principle amount.
As per section 34 of the Code of Civil Procedure the rate of interest may
exceeds 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 commercial one and there is no such contract existing
between the parties as to the rate of interest which shall be levied.
Therefore, the transaction is a simple handloan transaction and rate of
interest @ 10% per annum would be just and proper to be awarded on
the principle sum adjudged i.e. amount of Rs.6,00,000/. Hence, point
No.1 is answered in the affirmative.
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AS TO POINT NO.2:
8. In view of discussion and finding on point No.1 it is held that
plaintiff is entitled to recover Rs.6,00,000/ from the defendant with
interest at the rate of Rs.10% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from defendants. Hence, in answered to point No.2, I proceed to pass
the following order.
: O R D E R :
1.The defendant shall pay Rs.6,00,000/ (Rupees Six Lacs
only) to plaintiffs with interest at the rate of 10%
per annum from the date of filing of the suit till its
realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per rule.
Date:08.01.2020 (Ms. S. G. Shaikh)
AdHoc Judge,
City & Civil Court,
Gr. Bombay
Typed on : 08.01.2020
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
14.01.2020 at 11.20 am. PUSHPA RAMESH WAGH
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SMT S.G.SHAIKH
(Court Room No.59)
Date of pronouncement of Order 08.01.2020
Order signed by P.O. on 08.01.2020
Order uploaded on 14.01.2020
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