Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 111/19. 1 Ex-parte Judgment (Exh.11).
MHCC010062632019
Presented on : 21-06-2019
Registered on : 18-09-2019
Decided on : 23-12-2021
Duration : 2 years, 6 months, 2 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 111 OF 2019
Exh.11.
Mr. Dhiraj Kumar Khemlani, )
Aged not know, 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
Versus
1. Aryan Silk Mills, )
Partnership Firm, Through its Partners, )
Having registered office at, )
Roop Industrial Estate, 1st Floor, A.K.Road )
SakiNaka, Andheri (E), Mumbai 400072 )
2. Mr. Subhashchander Arya, )
Partner, Acceptor & Signatory )
Having registered office at, )
Roop Industrial Estate, 1st Floor, A.K.Road )
SakiNaka, Andheri (E), Mumbai 400072 )
3. Mr. Vineet Arya, )
Partner, )
Having registered office at, )
Roop Industrial Estate, 1st Floor, A.K.Road )
SakiNaka, Andheri (E), Mumbai 400072 )...Defendants
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Comm.Suit No. 111/19. 2 Ex-parte Judgment (Exh.11).
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 23rd DECEMBER, 2021.
Smt. Rahila Memon I/b Bhuta & Associates, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff has granted financial assistance of
Rs.5,00,000/ to the defendants against the bill of exchange executed
on 21/05/2012. The defendants assured payment of interest at the rate
of 15% p.a. on the amount. The defendants paid interest till
04/09/2017 on the principal amount. As the defendants failed to repay
the principal amount and interest, the plaintiff issued notice dated
01/01/2019 to the defendants through his advocate, they failed and
neglected to pay the outstanding amount inspite of receiving the notice.
Hence, the plaintiff filed the suit for recovery of Rs.6,05,410/ with
further interest at the rate of 15% p.a. from 01/02/2019 till the date of
realization with costs of the suit.
3. Defendants no. 1 to 3 appeared through advocate Mahadik
and filed vakalatnama (Exh.2), but they failed to file written statement.
Therefore, my learned predecessor passed 'No Written Statement' order
against them on 22/01/2020.
4. PW 1 Kumar Khemlani is the Power of Attorney of the
plaintiff who deposed on evidence affidavit (Exh.5) and proved
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Comm.Suit No. 111/19. 3 Ex-parte Judgment (Exh.11).
documents filed with list of documents (Exh.6). Proved documents are
at Exh.7 to 9 colly.. The plaintiff closed evidence vide pursis (Exh.10).
Learned counsel Rahil Memon for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.6,05,410/ from the defendants ?
If yes, at what rate of interest ? In the Affirmative.
@ 12% p.a.
2. What order as to costs ? As per final order.
3. What order and decree ? Suit is partly decreed.
REASONS
AS TO POINT NOS.1 AND 2 :
6. PW 1 Kumar Khemlani has specifically stated that amount
of Rs.5,00,000/ was given as a financial assistance to the defendants.
He has placed on record copy of his account in UCO Bank, Chowpatty
Branch in which amount of Rs.5,00,000/ is shown to have been
withdrawn by defendant no.1 as per Cheque No. 489264 on
22/05/2012. Bill of exchange (Exh.8) is executed on 21/05/2012.
PW 1 Kumar Khemlani has stated about payment of interest till
04/09/2017. As the defendants failed to pay interest and the principal
amount subsequently, the notice (Exh.9) was issued to the defendants
by the plaintiff making demand of the principal amount and accrued
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Comm.Suit No. 111/19. 4 Ex-parte Judgment (Exh.11).
interest. Unrebutted documentary and oral evidence of the plaintiff is
liable to be taken into account. Accordingly, the plaintiff has succeeded
in establishing his case with the help of oral and documentary evidence.
The plaintiff has also claimed interest at the rate of 15% p.a., but there
is no documentary basis to the same. As the said interest appears to be
exorbitant, it is reduced to the extent of 12% p.a. Costs of the suit is
liable to be imposed on defendants. In the light of above discussion, I
record my finding as to point no.1 in the affirmative with reduction in
interest rate as discussed above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 111/2019 is partly decreed.
2. The defendants are directed to pay amount of
Rs.6,05,410/ (Rupees Six Lakhs Five Thousand Four
Hundred Ten Only) to the plaintiff with further interest at
the rate of 12% p.a. from 01/02/2019 till the date of
realization within three months from the date of decree.
3. Defendants no.1 to 3 are jointly and severally liable for
payment of decretal amount to the plaintiff.
4. The defendants shall bear the costs of the suit.
5. Court fees shall be refunded to the plaintiff as per rules.
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 23/12/2021. Mumbai.
1. Dictated online on : 23/12/2021.
2. Signed on : 23/12/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 111/19. 5 Ex-parte Judgment (Exh.11).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2021. 5.36 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23/12/2021.
Judgment/Order signed by P.O. on 23/12/2021.
Judgment/Order uploaded on 23/12/2021.
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