Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.708/2018
Received on : 05.05.2018
Registered on : 12.07.2018
Decided on : 04.05.2019
Duration : Y M D
01 00 01
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 708 OF 2018
CNR NO.: MHCC010061642018
SANJESH CHUNINAL JAIN
Aged 45 years
of Mumbai, an adult Indian inhabitant,
having his address at Room No.70,
2nd floor, Swadheshi Market, Kalbadevi
Road, Mumbai – 400 002. ...Plaintiff.
Versus
DAYASHANKAR H. PATHAK
Age not known of Mumbai an adult Indian inhabitant
Working for gain with National Bank for Agriculture
And Rural Development (NABARD)
Bandra Kurla Complex, Bandra (East) Mumbai – 400 051
And residing at Damodat Park, A/5/14, 4th Floor
Ghatkopar (West), Mumbai. ...Defendant.
Appearances:
Advocate Mr. Ramesh Jain for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 4th MAY, 2019.
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[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that for valuable consideration of Rs.75,000/
the defendant received from him and towards discharge of the
defendant liability towards him, drew and delivered a Cheque dated
24th January 2017 bearing No.987400 drawn on Oriental Bank of
Commerce, Jash Chambers, Sir P.M. Road, Fort, Mumbai – 400 001, for
Rs.75,000/ in his favour.
2. Plaintiff has further stated that the said cheque on being
presented to the Bank has been dishonoured vide a memo of dishonour
dated 15th February 2017 with the Remark “Account Dormant”. Plaintiff
has further stated that by virtue of dishonour of he said cheque and
pursuant to the provisions of the Negotiable Instruments Act, he has
become entitled to and the defendant has become liable to pay interest
at the rate of 18% per annum on the sum of the said cheque from the
date of dishonour.
3. Plaintiff has further stated that he by his Advocate''s letter dated
14th April 2018 recorded, inter alia, the above facts and called upon the
defendant to pay the said sum of Rs.75,000/ and accrued interest. The
defendant has duly received the said letter. The defendant has failed
and avoided to comply with the requisitions thereof and have also
controverted the contents of the said letter. Plaintiff has further stated
that in the premises, there is now due and payable by the defendant to
him a sum of Rs.91,273.97ps. in accordance with the particulars of his
claim.
4. Defendant failed to appear in the suit, therefore, suit has
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proceeded exparte against him.
5. Heard the Ld. Advocate for the plaintiff.
6. Following points arise for determination and their findings
followed by reasons are as stated below:
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.91,273.97ps. from
defendant alongwith interest @ 18%
p. a. on the sum of Rs.75,000/ from
the date of filing of the suit till its
realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
7. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.9 Cheque dated 24th January 2017
2. Exh.10 Memo of Dishonour dated 15th February 2017
3. Exh.11 The Plaintiff's Advocates' letter dated 14th April 2018
alongwith the postal records in connection therewith.
AS TO POINT NOS. 1 AND 2:
8. Plaintiff has filed evidence of himself in the form of affidavit
below Exh.7 and stated that for valuable consideration and towards
discharge of the liability the defendant delivered a post dated cheque
dated 24th January 2017 bearing No.987400 drawn on Oriental Bank of
Commerce, Jash Chambers, Sir P.M. Road, Fort, Mumbai – 400 001, for
Rs.75,000/ in his favour for valuable consideration sum of Rs.75,000/
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received by the defendant. He has further stated that the said cheque on
being presented to the Bank has been dishonoured vide a memo of
dishonour dated 15th February 2017. Plaintiff has further stated that he
from time to time demanded from the defendant the said amount of
Rs.75,000/ and interest accrued thereon @ 18% per annum. The
defendant, however, failed and neglected to pay the said sum and any
part thereof and kept him on false and baseless promises.
9. Plaintiff has further stated that he repeatedly called upon the
defendant to pay the amount of Rs.75,000/ with interest due. The
defendant failed and neglected to pay the same and any part thereof.
Plaintiff has further stated that on 14th April 2018, he forwarded a
Demand Notice through his Advocates to the defendant. The said
Demand Notice was duly served upon the defendant. The defendant has
not disputed the contents of the said Notice and not forwarded any
reply thereto. Plaintiff has further stated that in the above
circumstances he filed the present suit for Rs.91,273.97ps. and further
interest on Rs.75,000/ at the rate of 18% per annum from filing of suit
till payment and costs.
10. Plaintiff has adduced Original Cheque, Memo of Dishonour and
the plaintiff's Advocates' letter alongwith the postal records on record as
documentary evidence. The oral evidence of plaintiff is corroborated by
documentary evidence. Defendant has failed to challenge all the
allegations in the plaint and evidence of plaintiff. Therefore, plaintiff
has proved that he is entitled to get sum of Rs.91,273.97ps. from
defendant.
11. It appears that as per Section 34 of the Code of Civil Procedure,
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it will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.75,000/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant is directed to pay sum of Rs.91,273.97ps. to plaintiff
along with interest @ 9% p.a. on the sum of Rs.75,000/ from
the date of filing of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 04.05.2019. City Civil Court,
Gr. Bombay.
Dictated on : 04.05.2019
Transcribed on : 04.05.2019
Signed on : 04.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.06.2019 At 12:45 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
04.05.2019
Judgment/Order signed by P.O. on 04.05.2019
Judgment/Order uploaded on 10.06.2019
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