Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Commercial Suit No. 121/2019
Received on : 21.06.2019
Registered on : 25.09.2019
Decided on : 21.02.2020
Duration : Y M D
00 08 01
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 121 OF 2019
CNR NO.: MHCC01-006558-2019
1. Mrs. Minal K. Khemlani
Aged not known, an adult, Indian Inhabitant,
Through her Power of Attorney Holder,
Mr. Kumar A. Khemlani
Residing at 24, New Blue Gardenia CHS,
7th Floor, Peddar Road, Opp. Jaslok Hospital,
Cumballa Hill, Mumbai 400–026
2. Mr. Dhiraj K. Khemlani
Age not known, an adult, Indian Inhabitant
Through his Power of Attorney Holder,
Mr. Kumar A. Khemlani
Residing at 24, New Blue Gardenia CHS,
7th Floor, Peddar Road, Opp. Jaslok Hospital,
Cumballa Hill, Mumbai – 400-026 ...Plaintiffs
Versus
1. M/s. Dwarkadas Chandumal
Through its Proprietor,
Mr. Dwarkadas Chandumal Tulsiani,
Having registered office at 196,
Shaikh Memon Street, Mumbai 400-002.
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And
184/186, Zaveri Bazaar, Mumbai 400002.
And
127, Pearl Croft, Turner Road, Bandra (W),
Mumbai 400-050.
2. Dwarkadas Chandumal Tulsiani
Proprietor,
Age not known, and adult, Indian inhabitant of
Mumbai, India, Having registered office at 196,
Having registered office at 196, Shaikh Memon
Street, Mumbai 400-002.
And
184/186, Zaveri Bazaar, Mumbai 400002.
And
127, Pearl Croft, Turner Road, Bandra (W),
Mumbai 400-050
3. Deepak Tulsiani
Acceptor,
Age not known, an Adult, Indian Inhabitant of
Mumbai, India, Having registered office at 196,
Having registered office at 196, Shaikh Memon
Street, Mumbai 400-002.
And
184/186, Zaveri Bazaar, Mumbai 400002.
And
127, Pearl Croft, Turner Road, Bandra (W),
Mumbai 400-050. ...Defendants
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Appearances:-
Advocate Mr. Bhuta for the Plaintiff.
Defendants Ex-parte.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO. 14)
DATED : 21st FEBRUARY, 2020.
[ J U D G M E N T ]
This is a suit filed by plaintiff to recover Rs.6,56,826/- along
with interest from defendants.
Allegations of plaintiff in short are as under :-
1. Plaintiffs have stated that defendants are the Jewellers engaged
in the business of Gold and Diamond Jewellery. Defendant No.1 is a
Proprietary Firm. Defendant No.2 is the Proprietor of the defendant
No.1 and the defendant No.3 is the Acceptor of the Bill of Exchange on
behalf of the defendants. The defendants carry on their business at and
from the address given in the cause title.
2. Plaintiffs have stated that defendants approached the plaintiff
No.1 abovenamed for an amount of Rs.3,00,000/- against the Bill of
Exchange sometime in the month of August 2013. The defendants
assured the payment of interest at the rate of 15% p.a. on the amount
till the return of the amount.
3. Plaintiffs have stated that defendants in furtherance of acquiring
trust and faith of the plaintiff No.1, the defendants drew a Bill of
Exchange dated 23.08.2013 which was duly accepted by the defendant
No.3 in favour of the plaintiff No.1 against the said total loan of
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Rs.3,00,000/-.
4. Plaintiffs have further stated that defendants have paid the
interest on the principal amount at the rate of 15% p.a. as agreed till
14.05.2018 and thereafter no payment has been made by the
defendants towards the interest thereon.
5. Plaintiffs have stated that the plaintiff No.1 waited all this time
hereby to give an opportunity to the defendants for an amicable
settlement but to no effect the defendants failed to take any effort
towards the repayment of the said loan amount and the interest
thereon.
6. Plaintiffs have stated that plaintiff No.1 through her Advocate
has also sent the notices dated 11th October 2018 and 22nd October
2018 to the defendants stating all the facts requesting to make the
repayment of the loan amount of Rs.3,00,000/- along with the interest
at the rate of 15% p.a. from 15th May 2018 till the realization or
payment of the amount, failing which the plaintiff No.1 would be
compelled to take a necessary legal action against the defendants in the
proper court of Law for the recovery of the entire amount.
7. Plaintiffs have stated that defendants approached the Plaintiff
No.2 abovenamed for an amount of Rs.3,00,000/- against the Bill of
Exchange sometime in the month of August, 2013. The defendant
assured the payment of interest at the rate of 15% p.a. on the amount
till the return of the amount.
8. Plaintiffs have stated that the defendants in furtherance of
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acquiring trust and faith of the plaintiff No.2, the defendants drew a Bill
of Exchange dated 23.08.2013 which was duly accepted by the
defendant No.3 in favour of the plaintiff No.2 against the said total loan
of Rs.3,00,000/-.
9. Plaintiffs have stated that the defendants have paid the interest
on the principal amount at the rate of 15% p.a. as agreed till
14.05.2018 and thereafter no payment has been made by the
defendants towards the interest thereon.
10. Plaintiffs have stated that plaintiff No.2 through his advocate has
also sent the notices dated 11th October 2018 and 22nd October 2018 to
the defendants stating all the facts requesting to make the repayment of
the loan amount of Rs.3,00,000/- along with the interest at the rate of
15% p.a. from 15th May, 2018 till the realization or payment of the
amount, failing which the plaintiff No.2 would be compelled to take a
necessary legal action against the defendants in the proper court of law
for the recovery of the entire amount.
11. Plaintiffs have stated that plaintiff No.2 through his advocate has
also sent the notices dated 11th October 2018 and 22nd October 2018 to
the defendants stating all the facts requesting to make the repayment of
the loan amount of Rs.3,00,000/- along with the interest at the rate of
15% p.a. from 15th May 2018 till the realizatioin or payment of the
amount, failing which the plaintiff No.2 would be compelled to take a
necessary legal action against the defendants in the proper court of law
for the recovery of the entire amount.
12. Plaintiffs have stated that plaintiff No.1 received
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acknowledgment Cards in respect of the abovesaid Legal Notice. The
said Notices are delivered to the defendants on 15th October 2018 and
23rd October 2018. Therefore, plaintiff filed this suit.
13. Defendant Nos. 1 to 3 failed to appear in the suit, therefore, suit
has proceeded ex-parte against them.
14. Heard the Ld. Advocate for the plaintiffs.
15. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether the plaintiffs are entitled to
get sum of Rs.6,56,826/- from
defendant Nos. 1 to 3 along with
interest @ 15% p.a. 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
16. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.5 Original Bill of Exchange dated 23.08.2013.
2. Exh.6 Copy of the Advocate Notice dated 11.10.2018 &
22.10.2018.
3. Exh.7 Original Acknowledgment Cards along with the Postal
Receipts.
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4. Exh.8 Original Bill of Exchange dated 23.08.2013.
5. Exh.9 Copy of the Advocate Notice dated 11.10.2018 &
22.10.2018.
6. Exh.10 Copy of the Acknowledgment Cards along with the
Postal Receipts of the Notice dated 11.10.2018 and
Original Acknowledgment Cards along with the Postal
Receipts of the Notice dated 22.10.2018.
AS TO POINT NOS. 1 AND 2:
17. Plaintiff has adduced evidence of her Power of Attorney Holder,
PW1- Kumar Khemlani in the form of affidavit below Exh.3. He has
stated in his evidence that defendants approached the plaintiff No.1 for
the financial assistance of an amount of Rs.3,00,000/- against the Bill of
Exchange sometime in the month of August, 2013. He has further stated
that the defendants assured the payment of interest at the rate of 15%
p.a. on the amount till the return of the amount.
18. PW1- Kumar Khemlani has further stated that the defendant in
furtherance of acquiring the plaintiff No.1’s trust and faith, drew a Bill
of Exchange dated 23.08.2013 which was duly accepted by the
defendant No.3 in favour of the plaintiff No.1 against the said total loan
of Rs.3,00,000/- given to the defendants by the plaintiff No.1.
19. PW1- Kumar Khemlani has further stated that once the said
amount was advanced, the plaintiff No.1 called the defendants several
times to return the said loan amount given along with the interest at the
rate of 15% p.a., but the defendants went on assuring the repayment
and postponed the repayment of the abovesaid loan amount along with
the interest thereon under one pretext or the other.
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20. PW1- Kumar Khemlani has further stated that plaintiff No.1
received acknowledgment Cards in respect of the abovesaid Notice &
the said Legal Notices has been duly delivered to the defendants on
15.10.2018 and 23.10.2018.
21. PW1- Kumar Khemlani has further stated that the defendants
approached the plaintiff No.2 for an amount of Rs.3,00,000/- against
the Bill of Exchange sometime in the month of August 2013. The
defendants assured the payment of interest at the rate of 15% p.a. on
the amount till the return of the amount.
22. PW1- Kumar Khemlani has further stated that the defendants in
furtherance of acquiring trust and faith of the plaintiff No.2, drew a Bill
of Exchange dated 23.08.2013 which was duly accepted by the
defendant No.3 in his favour against the said total loan of Rs.3,00,000/-
given to the defendants by the plaintiff No.2.
23. PW1- Kumar Khemlani has further stated that plaintiff No.2,
through his advocate have also sent the notice dated 11th October, 2018
and 22nd October, 2018 to the defendants stating all the facts requesting
to make the repayment of the total loan amount of Rs.3,00,000/-
alongwith the interest at the rate of 15% p.a. from 15th May, 2018 till
the realization of the amount, failing which he would be compelled to
take a necessary legal action against the defendants in the proper court
of Law for the recovery of the entire amount.
24. PW1- Kumar Khemlani has further submitted defendants have
paid the interest @ 15% p.a. till 14.05.2018 on the principal amount
and thereafter no payment has been made by the defendants towards
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the interest on the principal amount.
25. PW1- Kumar Khemlani has further stated that plaintiff No.2
received acknowledgment Cards in respect of the above said Legal
Notices & the said Legal notices has been duly delivered to the
defendants on 15.10.2018 and 23.10.2018.
26. PW1- Kumar Khemlani has further stated that despite several
reminders the defendants have failed and neglected to pay the
outstanding loan amount which is due and payable by the defendants to
the plaintiffs. He has further stated that the defendants have committed
the above acts willfully, knowingly, deliberately, intentionally and
malafidely with the intention to cheat them.
27. Plaintiff has produced corroborating documents which are
Original Bills of Exchange, Copies of the Advocate Notices, Copies of
original Acknowledgment cards along with Postal Receipts on record as
documentary evidence. The oral evidence of plaintiff is corroborated by
documentary evidence. Defendants have failed to take cross-
examination of plaintiff and and file Written Statement also. Therefore,
all the allegations of plaintiffs and evidence has remained unchallenged.
Therefore, plaintiffs have proved that they are entitled to get sum of Rs.
6,56,826/- from the defendants.
28. It appears that as per Section 34 of the Code of Civil Procedure,
1908, it will be proper to direct defendants to give interest at the rate of
10% p.a. on the amount of Rs.6,00,000/- from the date of filing of the
suit till its realisation. Hence, answer point No.1 in the partly
affirmative and pass following Order:-
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ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 to 3 are directed to pay sum of Rs.6,56,826/- to
plaintiffs along with interest at the rate of 10% p.a. on the sum of
Rs.6,00,000/- from the date of filing of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(SONALI P. AGARWAL)
Judge,
Date: 21.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 21.02.2020
Transcribed on : 21.02.2020
Signed on : 21.02.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
25.02.2020 At 02:57 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. Agarwal
(C.R. NO.14)
Date of pronouncement of
Judgment/Order
21.02.2020
Judgment/Order signed by P.O. on 21.02.2020
Judgment/Order uploaded on 25.02.2020
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