Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum. Suit No. 700 of 2019
Presented On : 07.06.2019
Registered On : 07.06.2019
Delivered On : 14.01.2020
Duration : 00Y. 07M. 07D.
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.700 OF 2019
(CNR NO. MH CC010061762018)
Exhibit 08
Mahendra Premchandji Jain.
Age.:57 years, Occ.: Nil,
Address: 46, Modi Street,
Ground Floor, Fort,
Mumbai – 400 001. ….Plaintiff
..Versus..
Xavier David Lobo.
Age.: Not known, Occ.: Service,
Address.: J 169, R.B.I. Colony,
North Avenue, Santacruz (West)
Mumbai – 400 054. ....Defendant.
SUIT FOR RECOVERY OF Rs.2,03,649.31ps
Appearance:
Mr.Ramesh Jain, Advocate for the Plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59)
DATE : 14 th January, 2020
: J U D G M E N T :
1. This is a summary suit under order XXXVII of Code of Civil
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2 Sum. Suit No. 700 of 2019.
Procedure 1908.
2. The facts of the suit are summarized as under :
The plaintiff is carrying on business of money lending in Mumbai. The
plaintiff advanced money by way of cheque to the defendant the sum of
Rs.2,00,000/ on 20 th April 2019 bearing no.673835 with interest at the
rate of 18% p.a. The defendant had promised to pay to the plaintiff the
said sum of Rs.2,00,000/ with interest thereon, at the rate of 18% per
annum on demand. Defendant issued a cheque bearing no.573835 drawn
on Karnataka Bank, Fort in favour of plaintiff which was dishonored vide
a memo of dishonour dated 22nd April, 2019 with the Remark '' Exceeds
Arrangement''. But, the defendant failed to pay to the plaintiff inspite of
demands, reminders and receipt of the legal notice dated 10th April, 2019.
Hence, plaintiff is constrained to file the suit for recovery of the said
amount. The total suit claim of the plaintiff for Rs.2,03,694.31 ps.
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 plaintiff ?
A] If yes, what would be the rate of
interest?
Amt. Of
Rs.2,03,649.51 ps.
at the rate of 18 % per
annum.
2 What order and decree? As per final order.
R E A S O N S
5. The plaintiff Mahendra Premchandji Jain has filed his affidavit at
Exhibit3. In order to prove the case of the plaintiff filed following
documentary evidence.
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3 Sum. Suit No. 700 of 2019.
Exhibit.
No.
Description of
documents
Date
Exhibit5 Dishonoured cheque of
Rs.2,00,000/ bearing no.
673835.
20/04/2019
Exhibit6 Memo of Dishonoured
Cheque issued by
defendant.
22/04/2019
Exhibit 7 Demand Letter issued by
plaintiff's advocate along
with original postal record
and acknowledgment.
10/05/2019
AS TO POINT NO.1 :
6. All the documents produced by the plaintiff at Exhibit5, 6, and 7
goes to establish that plaintiff has given amount of Rs.2,00,000/ to the
defendant as loan. The documents further prove that the amount of
Rs.2,00,000/ is due and payable to the plaintiff from defendant towards
the loan amount. The defendant has failed to repay the said loan amount
to the plaintiff. The documents at list Exhibits 6 to 10 goes to establish
that the defendant is liable to pay Rs.2,03,649.31 ps. to the plaintiff 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 the plaintiff. In this
background, it is held that plaintiff is entitled to recover sum of
Rs.2,03,649.31 ps. 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 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
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4 Sum. Suit No. 700 of 2019.
rate of interest @ 18% per annum would be just and proper to be
awarded on the principle sum adjudged i.e. amount of Rs.2,03,649.31 ps.
Hence, point No.1 is answered in the affirmative.
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.2,03,649.31ps. from the defendant
with interest at the rate of Rs.18% 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.2,03,649.51ps (Rupees Two Lacs
Three Thousand, Six hundred Fourty Nine and Fifty one
Paisa) to the plaintiff with interest at the rate of 18% 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:14.01.2020 (Ms. S. G. Shaikh)
AdHoc Judge,
City & Civil Court,
Gr. Bombay
Typed on : 14.01.2020
Signed on : 14.01.2020
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5 Sum. Suit No. 700 of 2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
18.01.2020 04.25 p.m. Mrs. P.R.Wagh
Name of the Judge H.H.J. Sabiha.G.Shaikh.
Adhoc Judge.
(Court Room No.59)
Date of pronouncement of Order 14.01.2020
Order signed by P.O. on 14.01.2020
Order uploaded on 18.01.2020
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