Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.678/2018
Received on : 05.05.2018
Registered on : 29.06.2018
Decided on : 14.06.2019
Duration : Y M D
01 01 11
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 678 OF 2018
CNR NO.: MHCC010062512018
PREMCHAND GULABCHANDJI
Age 77 Yrs.
of Mumbai, an adult Indian
Inhabitant, carrying on business
of Money Lending at and from
46, Modi Street, Ground
Floor, Fort, Mumbai – 400 001. ...Plaintiff.
Versus
1. SURYAKANT TUKARAM SURVE
age not known
of Mumbai an adult Indian inhabitant
Working for gain with Western Railway COS
Office Station Bldg, 4th Floor, Churchgate
Mumbai – 400 020 and residing at 4/12 Western
Railway Quarters, Nalasopara, West,
Mumbai – 401 203.
2. ANTHONY NATHAN FRANCIS
age not known of Mumbai an adult
Indian inhabitant Working for gain with
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Western Railway COS
Office Station Bldg, 4th Floor, Churchgate
Mumbai – 400 020 and residing at Raman
Mama Vasant Nagar Baiganwadi, Flat No.310,
Gowandi, Mumbai – 400 043. ...Defendants.
Appearances:
Advocate Mr. Ramesh Jain for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 14th JUNE, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that on 15th May 2017, the defendants
executed a Demand Promissory Note in his favour for valuable
consideration being a sum of Rs.25,000/ received by the defendants
from him against and on the basis of execution and handing over of the
said Demand Promissory Note. By the said Demand Promissory Note the
Defendants promised to pay to him the said sum of Rs.25,000/
alongwith interest thereon @ 1.25% per annum on demand. Plaintiff
has further stated that he from time to time demanded from the
defendants the said amount of Rs.25,000/ and interest accrued thereon
@ 1.25% per annum. The defendants, however, failed and neglected to
pay the said sum and any part thereof and kept him on false and
baseless promises.
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2. Plaintiff has further stated that after waiting sufficient time, he
forwarded his Advocate's letter dated 08th February 2018, recording the
above facts, and instructed the Defendant to comply with the
requisitions mentioned in the said letter, within a period of 48 hours
from receipt thereof. Plaintiff has further stated that the defendants
have duly received the said letter. The defendant has failed and
neglected to comply with the requisition thereof and has also not
controverted the contents of the said letter. Plaintiff has further stated
that in the premises aforesaid, there is now due and payable by the
defendants, jointly and severally to him a sum of Rs.28,369.86ps. in
accordance with the Particulars of Claim. Therefore, plaintiff filed this
suit.
3. Defendant No.2 failed to appear in the suit, therefore, suit has
proceeded exparte against him.
4. Heard the Ld. Advocate for the plaintiff.
5. 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
sum of Rs.28,369.86ps. from
defendant No.2 alongwith interest @
1.25% per month on the principal
sum of Rs.25,000/ from the date of
filing of the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
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REASONS
6. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.9 Promissory Note dated 15th May 2017.
2. Exh.10 Plaintiff's Advocates' letter dated 08th February 2018
alongwith the postal records in connection with the
transmission and delivery thereof.
3. Exh.11 Money Lender Licence.
4. Exh.12 Forms under Bombay Money Lending Act.
5. Exh.13 Books of Accounts.
AS TO POINT NOS. 1 AND 2:
7. Plaintiff has filed evidence Mahendra Premchandji (P.W.1), the
Constituted Attorney of plaintiff in the form of affidavit below Exh.7
and he has stated in his evidence that on 15th May 2017, the defendants
executed a Demand Promissory Note of Rs.25,000/ in his favour for
valuable consideration sum of Rs.25,000/ received by the defendants.
By the said Demand Promissory Note the defendants promised to pay to
him that the said sum of Rs.25,000/ alongwith interest thereon @
1.25% per month on Demand. Mahendra Premchandji (P.W.1) has
further stated that the plaintiff from time to time demanded from the
defendants the said amount of Rs.25,000/ and interest accrued thereon
@ 1.25% per month. The defendants, however, failed and neglected to
pay the said sum and any part thereof and kept him on false and
baseless promises.
8. Mahendra Premchandji (P.W.1) has further stated on 08th
February, 2018, the forwarded a Demand Notice through his Advocates
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to the defendants. The said Demand Notice was duly served upon the
defendants. Mahendra Premchandji (P.W.1) has further stated that the
defendants have not disputed the contents of the said Notice and not
forwarded any reply thereto. Mahendra Premchandji (P.W.1) has
further stated that in the above circumstances the plaintiff filed the
present suit for Rs.28,369.86ps. and further interest on Rs.25,000/ at
the rate of 15% per annum from filing of suit till payment and costs.
Mahendra Premchandji (P.W.1) has further stated that the defendant
No.2 does not filed any appearance after service of Writ of Summons
and not controverted the statement contained in the plant. Mahendra
Premchandji (P.W.1) has further stated that he is withdrawing the suit
against defendant No.1.
9. Plaintiff has adduced Promissory Note, Plaintiff's Advocate letter
alongwith postal records, Money Lender Licence, Forms under Bombay
Money Lending Act and Books of Accounts on record as documentary
evidence. The oral evidence of plaintiff is corroborated by documentary
evidence. Defendant No.2 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.28,369.86ps. from defendant No.2.
10. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendant No.2 to give interest @ 9% p.a. on
the amount of Rs.25,000/ 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 against defendant No.2.
2. Defendant No.2 is directed to pay sum of Rs.28,369.86ps. to
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plaintiff along with interest @ 9% p.a. on the principal sum of
Rs.25,000/ from the date of filing of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
5. Suit stands withdrawn against defendant No.1.
(S.P. AGARWAL)
Judge,
Date: 14.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 14.06.2019
Transcribed on : 14.06.2019
Signed on : 14.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.07.2019 At 11:24 a.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
14.06.2019
Judgment/Order signed by P.O. on 14.06.2019
Judgment/Order uploaded on 10.07.2019
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