Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Received on : 05.05.2018
Registered on : 21.06.2018
Decided on : 08.11.2021
Duration : 03Y 06M 03D
EXHIBIT14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 660 OF 2018
( CNR No.MHCC010062152018)
MANOJ ZAVERCHAND DEDHIA ]
Aged 50 years, Occupation:Professor,]
of Mumbai Indian Inhabitant ]
having his address at C/o Manoj ]
and Ashok Associates, 301, 3rd floor, ]
India Printing House, 42, G.D. ]
Ambekar Road, Near Wadala Bus ]
Depot, Opp: Ram Mandir, Wadala, ]
Mumbai 400 031. ].. Plaintiff.
V/s.
JATIN V. SHAH, ]
Aged not known, Occupation:Business]
of Mumbai Indian Inhabitant ]
Residing at 901, Sugee Heights, ]
Opp: St. Pius School, Nahur Road, ]
Mulund (West), Mumbai 400 080 ]
and having office at C/o XPROIT ]
Innovations Pvt. Ltd., Gala No.116, ]
1st Floor, Niraj Industrial Estate, ]
Opp. Sun Pharma, Paper Box Lane, ]
Off: Mahakali Caves Road, ]
Andheri (East), Mumbai – 400 093. ]..Defendant.
Advocates Mr. Kunal Ramesh Solanki for the plaintiff.
Defendants Exparte.
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CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 08th NOVEMBER, 2021
JUDGMENT
The Suit is instituted for the relief of recovery of amount of
Rs.10,14,952/ alongwith interest on the amount of
Rs.10,00,000/ at the rate of 15.60% p.a. from the date of institution of
the suit till realisation of the total decreetal amount.
2. It is the case of the Plaintiff that, Plaintiff is an advocate
and defendant is a businessman. Vilesh and Nishit Zaveri approached
plaintiff with a proposal to lend money to the defendant for business
purpose. Plaintiff enquired with them about the financial stability of
defendant. Vilesh and Nishit assured plaintiff that the defendant was
financially stable and in need of Rs.10,00,000/ with interest at the rate
of 15.60% p.a. Accordingly, plaintiff transferred the amount of
Rs.10,00,000/ to the account of defendant on 07/05/2015. Defendant
executed a demand promissory note on the same day and agreed to
repay the amount alongwith interest. Defendant accordingly paid
interest to plaintiff till March 2018. However, thereafter defendant did
not pay any amount to plaintiff till today.
3. Plaintiff issued a notice to defendant demanding the
amount with interest. Defendant received that notice. Defendant did not
reply the said notice nor repaid the amount. Plaintiff requested Vilesh
and Nishit to ask the defendant to repay the amount. However the
defendant did not pay the same. Hence plaintiff is constrained to
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institute the present suit for the recovery of the amount.
4. Defendant was duly served with the writ of summons and
appeared before the Court. Plaintiff took out summons for judgment but
defendant failed to file the reply to the same. Hence as per the order
passed by my learned predecessor, the suit proceeded without the reply
of the defendant.
5. Considering the contentions in the plaint, documents on
record and submissions of learned Advocate for the plaintiff, following
points arise for my determination and my findings to them are as stated
below for the following reasons.
Sr.
No
POINTS FINDINGS
1 Whether the plaintiff proves that he
advanced the amount of Rs.10,00,000/ to
the defendant?
In the
Affirmative
2 Whether plaintiff has proved that the
defendant has agreed to replay the amount
of Rs.10,00,000/ alongwith interest at the
rate of 15.60% p.a.?
In the
Affirmative
3 Whether plaintiff has proved that defendant
filed to repay the amount of Rs.10,00,000/
alongwith interest there on at the rate of
15.60% p.a. from 01/04/2018?
In the
Affirmative
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4 Whether plaintiff is entitled to the interest as
claimed for?
In the
Affirmative
5 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 4:
6. As all these points are interconnected, they are discussed at
once to avoid the repetition.
7. Plaintiff has filed claim affidavit at Exh.6. He has supported
all the contents in the plaint. He has proved all the documents filed on
record. The defendant failed to put up the case for leave to defend.
Hence the oral and documentary evidence led by the plaintiff has gone
unchallenged.
8. Plaintiff has produced on record the original demand
promissory note at Exhibit7 . It shows that the defendant borrowed the
amount of Rs.10,00,000/ from the plaintiff on 07/05/2015 and agreed
to repay the same with interest at the rate of 15% p.a. The plaintiff has
produced on record the original cheque worth Rs.10,00,000/ which he
did not present in the bank on the request of the defendant. Plaintiff has
produced on record a copy of the demand notices issued by him to the
defendant. Plaintiff has also produced on record cheques issued by the
defendant to him.
9. All these documents clearly show that the plaintiff has
advanced amount of Rs.10,00,000/ to the defendant. Defendant agreed
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to pay interest at the rate of 15.60% p.a. but failed to pay the amount.
He paid amount of interest only for first few days. Plaintiff has further
proved that the interest at the rate of 15.60% p.a. is due to him from
the defendant from 01/04/2018. The rate of interest is agreed by the
defendant in the demand promissory note. Therefore, there is no need
to change the same. Plaintiff is not an authorised money lender and this
appears to be advancement of the amount for defendant by the plaintiff.
10. Learned advocate for the plaintiff relied upon the judgment
in the case of Nandram Kaniram and Others Vs N.B.Rahatekar
reported in 1994(1) Bom C.R.28. It is held that, if a professional has
choosen to advance his savings on interest to a reputed and known
traders through a Hundi Dalal on few occasions, it cannot be said that
he is a professional money lender. Money lending business always
imports a notion of system, repetition and continuity. In the present
matter, the suit transaction is the only isolated transaction made by the
plaintiff. Therefore, there is no element of system, reputation and
continuity. Hence it cannot be said that the plaintiff is conducting the
business of money lending.
11. In view of the above, the suit deserves to be decreed.
Hence, I answer points Nos. 1 to 4 in the affirmative and in answer to
point no.5 proceed to pass the following order.
O R D E R
1. The suit is decreed with costs.
2. Defendant is directed to pay the amount of Rs.
10,14,958/ along with interest on the amount o
Rs.10,00,000/ to plaintiff along with interest thereon at
the rate of 15.60% p.a. from 01.04.2018 till realisation of
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the total decreetal amount within 60 days from the date
of this order.
3. Court fees be refunded in appropriate proportion and
as per the entitlement.
4. Decree be drawn up accordingly.
5. Summary Suit No. 660/2018 and Summons for
Judgment No.220 of 2018 are disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 08.11.2021 Gr.Mumbai.
Dictated on: 08.11.2021
Typed on : 10.11.2021
Signed on : 15.11.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15.11.2021 AT 5.10 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
08.11.2021
Judgment/Order signed by P.O. on 15.11.2021
Judgment/Order uploaded on 15.11.2021
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