Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Commercial Suit No.109/2019
Received on : 21.06.2019
Registered on : 21.06.2019
Decided on : 10.02.2020
Duration : Y M D
00 07 22
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 109 OF 2019
CNR NO.: MHCC01-006259-2019
Mrs. Minal Kumar 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 ...Plaintiff
V/s.
Mr. Atul Arya
Age not known, an Adult Indian Inhabitant,
Having his registered office at,
Roop Industrial Estate, 1st Floor, Saki-Naka,
Andheri East, Mumbai – 72.
or
D/23/3, Tarapur Industrial Estate,
MIDC Salvad, Tarapur, Tal-Palghar, Thane,
Maharashtra 401-506 ...Defendant
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Appearances:-
Advocate Mr. Bhuta for the Plaintiff.
Defendant Ex-parte.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO. 14)
DATED : 10th FEBRUARY, 2020.
[ J U D G M E N T ]
Story of plaintiff in short is as under :-
1. Plaintiff has stated that defendant approached her for an amount
of Rs.5,00,000/- against the Bill of Exchange sometime in the month of
May, 2016. The defendant assured the payment of interest at the rate of
15% p.a. on the amount till the return of the amount.
2. Plaintiff has further stated that defendant in furtherance of
acquiring her trust and faith, drew a Bill of Exchange dated 05.05.2016
which was duly accepted by the defendant and the defendant also
issued two cheques drawn on Bank of Baroda, Versova Branch, Mumbai
400 058, bearing No.000492, dated 11.06.2018 for an amount of
Rs.3,00,000/- and No.000493 dated 07.08.2018 for an amount of
Rs.2,00,000/- in her favour against the said total loan of Rs.5,00,000/-
given to the defendant by her.
3. Plaintiff has further stated that the defendant has paid the
interest @ 15% p.a. till 07.02.2018 on the principal amount and
thereafter no payment has been made by the defendant towards the
interest on the principal amount.
4. Plaintiff has further stated that on the assurance given by the
defendant, she deposited the above said cheques bearing No.000492 for
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an amount of Rs.3,00,000/- and No.000493 for an amount of
Rs.2,00,000/- given by the defendant with her Bank viz. HDFC Bank
Ltd., Opera House-Chowpatty Branch for a total amount aggregating to
Rs.5,00,000/-. But to the utter shock and surprise the said cheques were
dishonoured and returned along with the intimation on 01.08.2018 and
09.01.2018 respectively to her with the remark “Funds Insufficient”
stated in the Inward Return Memo of the HDFC Bank Ltd.
5. Plaintiff has further stated that she through her Advocate has
also sent the Notice dated 24th October, 2018 to the defendant stating
all the facts requesting to make the repayment of the total loan amount
of Rs.5,00,000/- along with the interest at the rate of 15% p.a. from the
date of default i.e. 30.01.2018 till the realization of the amount, failing
which she would be compelled to take a necessary legal action against
the defendant in the proper Court of Law for the recovery of the entire
amount. Plaintiff has further stated that she did not receive any
acknowledgment Card in respect of the above said legal notice but the
same is indicated to be delivered through the Tracking Information
available from the website of India Post. The said Notice has been
delivered to the defendant on 27th October, 2018.
6. Plaintiff has further stated that the amount which is due and
payable to her amounts to a sum of Rs.5,69,041/- as on 31.12.2018
along with interest at the rate of 15% p.a. from 01.01.2019 as
mentioned in the particulars of Claim till the realization of the payment
as per the particulars of claim. Therefore, plaintiff filed this suit.
7. Defendant failed to appear in the suit, therefore, suit has
proceeded ex-parte against him.
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8. Heard the Ld. Advocate for the plaintiff.
9. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether the plaintiff is entitled to get
sum of Rs.5,69,041/- from defendant
along with interest @ 15% p.a. on
the sum of Rs.5,00,000/- from the
date of filing of the suit till its
realisation ?
… Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
10. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.5 Copy of the passbook of the HDFC Bank Ltd., Opera
House Branch of the plaintiff indicating the
Transaction.
2. Exh.6 Original Bill of Exchange dated 05.05.2016.
3. Exh.7 Original cheques dated 11.06.2018 and 07.08.2018.
4. Exh.8 Original Return Memo dated 01.08.2018 &
09.08.2018.
5. Exh.9 Copy of the Advocate Notice dated 24.10.2018 and the
Printed Copy of the Tracking Information along with
the Postal receipts.
AS TO POINT NOS. 1 AND 2:
11. Plaintiff has adduced evidence of her Power of Attorney Holder,
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PW1- Kumar Khemlani in the form of affidavit below Exh.3. He has
stated in his evidence that defendant approached the plaintiff for an
amount of Rs.5,00,000/- against the Bill of Exchange sometime in the
month of May, 2016. He has further stated that the defendant assured
the payment of interest at the rate of 15% p.a. on the amount till the
return of the amount.
12. PW1- Kumar Khemlani has further stated that defendant in
furtherance of acquiring his trust and faith, drew a Bill of Exchange
dated 05.05.2016 which was duly accepted by the defendant and the
defendant also issued two post-dated cheques drawn on Bank of
Baroda, Versova Branch, Mumbai 400 058, bearing No.000492, dated
11.06.2018 for an amount of Rs.3,00,000/- and No.000493 dated
07.08.2018 for an amount of Rs.2,00,000/- in the favour of plaintiff
against the said total loan of Rs.5,00,000/- given to the defendant by
the plaintiff.
13. PW1- Kumar Khemlani has further stated that the defendant has
paid the interest @ 15% p.a. till 07.02.2018 on the principal amount
and thereafter no payment has been made by the defendant towards the
interest on the principal amount.
14. PW1- Kumar Khemlani has further stated that on the assurance
given by the defendant, the plaintiff deposited the above said cheques
bearing No.000492 for an amount of Rs.3,00,000/- and No.000493 for
an amount of Rs.2,00,000/- given by the defendant with the Plaintiff
Bank viz. HDFC Bank Ltd., Opera House-Chowpatty Branch for a total
amount aggregating to Rs.5,00,000/-, but to the utter shock and
surprise the said cheques were dishonoured and returned along with
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the intimation on 01.08.2018 and 09.01.2018 respectively to him with
the remark “Funds Insufficient” stated in the Inward Return Memo of
the HDFC Bank Ltd.
15. PW1- Kumar Khemlani has further stated that the plaintiff
through her Advocate has also sent the Notice dated 24th October, 2018
to the defendant stating all the facts requesting to make the repayment
of the total loan amount of Rs.5,00,000/- along with the interest at the
rate of 15% p.a. from the date of default i.e. 30.01.2018 till the
realization of the amount, failing which the plaintiff would be
compelled to take a necessary legal action against the defendant in the
proper Court of Law for the recovery of the entire amount. He has
further stated that the plaintiff has received acknowledgment Card in
respect of the above said legal notice and the said legal notice has been
duly delivered to the defendant on 27.08.2018.
16. PW1- Kumar Khemlani has further stated that the amount which
is due and payable to the plaintiff amounts to a sum of Rs.5,69,041/- as
on 31.12.2018 along with interest at the rate of 15% p.a. from
01.01.2019 as mentioned in the particulars of Claim till the realization
of the payment as per the particulars of claim.
17. Plaintiff has produced corroborating documents which are copy
of the Passbook of the HDFC Bank Ltd., Original Bill of Exchange,
Original Cheques, Original Return Memo, Copy of the Advocate Notice
and the Printed copy of the Tracking Information along with the Postal
receipts on record as documentary evidence. Defendant has failed to
take cross-examination of witness of plaintiff. Therefore evidence of
PW1-Kumar Khemlani has remained unschattered and unchallenged.
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Defendant has failed to file Written Statement and challenge allegations
of plaintiff. The oral and documentary evidence lead by plaintiff is
corroborating each other has proved that plaintiff is entitled to get sum
of Rs.5,69,041/- from defendant.
18. It appears that as per Section 34 of the Code of Civil Procedure,
1908, it will be proper to direct defendant to give interest at the rate of
9% p.a. on the amount of Rs.5,00,000/- from the date of filing of the
suit till its realisation. Hence, answer point No.1 in the partly
affirmative and pass following Order:-
ORDER
1. Suit is partly decreed with cost.
2. Defendant is directed to pay sum of Rs.5,69,041/- to plaintiff along
with interest at the rate of 9% p.a. on the sum of Rs.5,00,000/-
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: 10.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 10.02.2020
Transcribed on : 10.02.2020
Signed on : 10.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20.02.2020 At 03:04 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
10.02.2020
Judgment/Order signed by P.O. on 10.02.2020
Judgment/Order uploaded on 20.02.2020
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