Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :19.07.2019
Registered On :11.07.2019
Decided on :-05.01.2022
Duration : Y-02/M-05/D-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 706 OF 2019
IN
Exhibit-10
CNR No:-MHCC01-006182-2019
Yankavva Yallappa Andredi
Age- 45 years.
of Mumbai an adult Indian
Inhabitant, having her address at Room No. 3
Chawl No. G/27, Matunga Labour Camp,
Mumbai-400 019 through C.A.
Lakshya Yallappa Andredi Age: 26 years.
....Plaintiff
V/s.
Ajay Gangaram Kamble
Age not known of Mumbai, an adult
Indian Inhabitant, working for gain with
Working for gain with B.M.C. , “B” ward.
Conservancy Dept, 121 Ramchand Bhat Marg,
Mumbai- 400 009. Emp Code No. 4116361.
Residing at Room No. 28, Municipal Chawl
No.42, Laxman Jadhav Marg, Jail
Road(North), Mumbai- 400 009.
... Defendant
SUIT FOR RECOVERY
Appearance:-
Mr.Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 5.1.2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff is doing business of money lending. The
defendant approached to him for loan. Hence, on 5.7.2018, the
defendant executed a Demand Promissory Note in favour of the plaintiff
for valuable consideration being a sum of Rs.2,00,000/- received by the
defendant from the plaintiff against and on the basis of execution and
handing over of the said Demand Promissory Note. By the said demand
promissory Note the defendant promised to pay to the plaintiff said sum
of Rs.2,00,000/- alongwith interest thereon @18% p.a. on demand. The
defendant thereafter failed and neglected to repay the amount as per
the stipulation and promise given in the demand promissory note.
Hence, after waiting for sufficient time, the plaintiff issued advocate’s
letter dtd.10.5.2019 calling upon the defendant to make the repayment
of the outstanding amount. However, the defendant failed to comply
with the letter. The due and payable amount against the defendant
alongwith 18% interest is Rs.2,36,000/-. Said amount is not paid by the
defendant. Hence, plaintiff is constrained to file the suit for recovery of
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the said amount.
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 Whether plaintiff is entitled to
recover due amount from the
defendant as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.2,36,000/- with
interest
@ 18 % per annum on
principal amount of
Rs.2,00,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.4-A i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Promissory Note dated 5.6.2018
being Exhibit “A” to the plaint
Exh. 5
2 Plaintiff’s Advocates’ letter dated
10.5.2019 being Exhibit “B” to the
plaint alongwith the postal records
in connection with the
transmission and delivery thereof.
Exh. 6
3 Money Lender Licence Exh.7
4 Forms under Bombay Money
Lending Act.
Exh.8
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Sr.
No.
Description of documents Exhibits
5 Books of Accounts Exh.9
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded under
order XXXVII of C.P.C as the same is not contested by the defendant. The
plaintiff has to establish the entitlement for the monetary relief,
undoubtedly, as per the procedure laid down in order XXXVII C.P.C,
once the suit is not contested by the defendant, the plaintiff is entitled
for the relief claimed in the suit plaint. Here, the plaintiff has produced
above referred documents including his money lending licence, which
made him entitle to lend money.
7. All the documents produced by the plaintiff at Exh. Nos.1 to 5
goes to establish that plaintiff has given amount of Rs.2,00,000/-to the
defendant. The documents further prove that the amount of
Rs.2,36,000/- is due and payable to the plaintiff from defendant
towards the amount. The defendant have failed to repay the said
amount to the plaintiff. The documents at Exh. Nos.1 to 5 goes to
establish that the defendant is liable to pay Rs.2,36,000/- to the plaintiff
on the date of filing of the suit towards the said amount. He failed to
comply with the demand letter. In this background, it is held that
plaintiff is entitled to recover sum of Rs.2,36,000/- from the defendant.
8. The plaintiff has claimed 18% per annum on the principal
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
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the present case, the transaction is commercial one and there is
contract existing between the parties as to the rate of interest which
shall be levied. The agreed rate of interest is 18% p.a hence, I hold
that, the transaction being commercial one and the agreed rate of
interest is @ 18% per annum, said rate of interest of 18% p.a would be
just and proper to be awarded on the principal sum adjudged i.e.
amount of Rs.2,00,000/-. Hence, point No.1 is answered in the
affirmative.
AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held that
plaintiff is entitled to recover Rs.2,36,000/- from the defendant with
interest on principal amount of Rs.2,00,000/- at the rate of 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.2,36,000/- (Rs. Two Lakhs
Thirty Six Thousand Only) to the plaintiff with interest
on principal amount of Rs.2,00,000/- 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. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :05/01/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :05.01.2022
Typed on :10.01.2022
Signed on : 10.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.1.2022 03.00 p.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
05.1.2022
JUDGMENT/ORDER signed by
P.O.on
10.1.2022
JUDGMENT/ORDER uploaded on 10.1.2022
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