Final Order 3

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.1592019
MHCC010063022019 Presented on : 24/06/2019
Registered on : 24/10/2019
Decided on : 13/02/2023
Duration : 03Y/03M/20D
Exh.37
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.159 of 2019
M/s. Alchemie financial Services Ltd.
Having their registered office at 71, Udyog
Kshetra, 2nd floor, 205 Mulund Goregaon Link
Road, Mumbai (West), Mumbai 400080
Mr. Rajesh Mahadev Mhatre, Authorized
Signatory and Constituted Attorney.
...PLAINTIFF
VERSUS
Leena Nirmal Chhadva
Proprietor of M/s. Sapna Creatives,
Moti Baug., Shed M Plot No.21, Opp. R. K.
Studio, S. T. Road, Chembur, Mumbai400
071
AND
Also at 1 Bungalow, Neelkanth Niyam CHS,
Opp. Joy Hospital Chembur, Mumbai400
071.
...DEFENDANT
Smt. Sonali Kunekar i/b. Vikas K. Mahanagare, learned
Advocates for the plaintiff.
Shri. Paras Vira, learned Advocate of defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
J U D G M E N T
(Delivered on 13/02/2023)
This is a suit for recovery of sum of Rs.64,70,697/ and
interest @ 15 % p.a. on principal sum of Rs.50,00,000/ from the date
of suit till realization of entire amount.
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2. It is case of plaintiff that it is engaged in business of
providing finance and investment to large number of customers located
in Maharashtra and other states. Defendant is in business of ready
garments (embroidery) in the name and style as ‘Sapan Creatives’. In
the course of business, defendant taken loan of Rs.50,00,000/ on
18/04/2012 from plaintiff. On the same day defendant has executed
promissory note in favour of plaintiff. Defendant agreed to pay interest
@ 15% p.a.
3. Defendant has paid interest on loan amount till
31/03/2017. In last week of June 2017 defendant approached to the
plaintiff and told that he is intending to pay entire loan amount with
interest from April 2017 to June 2017. Accordingly, defendant has
issued cheque dtd.03/07/2017 amounting to Rs.51,86,986/ to the
plaintiff towards principal and interest amount. However, the said
cheque dishonored on 05/07/2017 due to “exceed arrangement”.
4. Thereafter, plaintiff has sent legal notice to defendant on
26/07/2017 and demanded outstanding dues. Defendant has served
with the said notice on 28/07/2017, but he neglected to pay the said
dues. Therefore, plaintiff has filed complaint under Section 138 of N.I.
Act before learned JMFC, Thane, which is pending.
5. On 26/07/2018 plaintiff has again sent demand notice to
defendant and demanded principal loan amount alongwith interest @
24% p.a. till 31/05/2018. Defendant has served with the said notice on
27/07/2018 but he did not respond the same. Plaintiff claimed recovery
of principal sum of Rs.50,00,000/ + interest on sum of Rs.50,00,000/
@ 15% p.a. from 01/04/2017 to 30/06/2017 amounting to
Rs.1,86,986/ + interest on sum of Rs.51,86,986/ @ 15% p.a. from
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01/07/2017 to 31/03/2017 amounting to Rs.5,84,069/ + interest on
sum of Rs.57,71,055/ @ 15% p.a. from 01/04/2018 to 20/01/2019
amounting to Rs.6,99,642/ (Total Rs.64,70,697/).
6. Defendant has filed written statement at Exh.8 and
contended that plaintiff with the help of false statements made in the
plaint filed this suit. Plaintiff claimed recovery of the loan amount in the
capacity of moneylender. The said issue falls under Section 2(2) and
(9) of the Bombay Money Lenders Act 1946. Therefore, under section
10 of the said Act this court cannot grant relief against defendant, since
neither statements made about license of the plaintiff to advance money
on interest nor plaintiff has obtained license under the said Act.
7. The address of plaintiff is Mulund (Mumbai) and therefore,
this court has no territorial jurisdiction to try and entertain the suit. Mr.
Rajendra Mahadev Mhatre has filed this suit on behalf of plaintiff but he
has not specific authority to file the suit. Hence, the suit is not
maintainable.
8. Suit is on the footing that the purported loan amount has
been advanced on 18/04/2012 and interest paid thereon upto
31/03/2017. However, plaintiff has not filed any document to
demonstrate that defendant has paid alleged interest. Therefore, suit is
barred by limitation under the provisions of the Limitation Act. The
plaint discloses no cause of action against the defendant.
9. Defendant denied that she has taken loan of
Rs.50,00,000/ from plaintiff on 18/04/2012. She also denied that she
paid interest upto 31/03/2017. She denied that she has issued cheque
of Rs.51,86,986/ on 03/03/2017 to the plaintiff. Her business of
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garment is at small scale and therefore, the said business does not
require such a huge loan of Rs.50,00,000/. In view of above pleading
defendant denied all other adverse content of plaint.
10. Learned predecessor has framed issues at Exh.11 and this
court has recorded findings thereon for the reasons stated as under.
ISSUES FINDINGS
1. Whether plaintiff proves that it has
advanced loan of Rs.50,00,000/ to
defendant?
...Yes
2. Whether plaintiff proves that the
defendant has failed to repay the
outstanding amount?
...Yes,
Rs.63,52,083/
3. Whether there is bar of section 13 of the
Maharashtra Money Lenders Act, 2014 to
try this suit?
...No
4. Whether this Court has territorial
jurisdiction to try and decide this suit ?
...Yes
5. Whether the suit is within limitation ? ...Yes
6. What order and decree? ...As per final
order.
REASONS
11. Heard learned counsel of both the parties. Perused written
argument (Exh.36) filed by advocate of plaintiff. In order to prove its
case plaintiff has examined two witnesses: PW1 Mr. Rajendra
Mahadeo Mhatre, accounts manager of plaintiff and PW2 Kiran
Mahadev Kakade, Branch Relationship officer in Axis Bank, Mulund(W).
Defendant has not examined herself and any witnesses on her behalf.
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12. Plaintiff has filed documentary evidence as under.
Exh. Documents
15 Certificate of registration issued by Reserve Bank of India.
16 Resolution dtd.14/07/2017.
17 Bank Statement.
18 Demand notice dtd.26/07/2017.
19 Postal receipt dtd.26/07/2017
20 RPAD card 27 & 28/07/2018
30 Certified copy of promissory note dtd.18/04/2012.
32 Certified copy of cheque alongwith bank memo
33 Certified copy of notice under Section 138 of N.I. Act.
AS TO ISSUE No.3:
13. Evidence of PW1/Rajendra shows that he is Accounts
Manager in plaintiff/company. He has filed certified copy of resolution
dtd.14/07/2017 (Exh.16) passed by the Board of the Directors of
plaintiff/company. Its contents shows that PW1/Rajendra, Accounts
Manager and Mr. Vinod V. Khanolkar, are authorized to represent the
plaintiff before concerned courts Civil and/or Criminal or Tribunal or
authorities constituted under any Local/State/Central Acts in the
financial/civil and/or criminal matters. Further it indicates that Mr.
Rajendra Mhatre and Mr. Vinod Khanolkar authorized to give evidence,
file relevant documents before aforesaid courts including filing of
complaint, affidavit, written statement etc.
14. PW1 has mentioned on page No.1 of chief examination
that he is account manager of M/s. United India Insurance Co. Ltd.
During crossexamination, PW1 made it clear that the same is wrongly
mentioned. Considering the above facts, it seems that PW1 has
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inadvertently or due to typing mistake mentioned M/s. United India
Company Limited instead of M/s. Alchemie Financial Services Ltd.
Therefore, in view of above resolution (Exh.16), PW1 is authorized
signatory of plaintiff and he is authorized to file this suit and adduce
evidence on behalf of plaintiff.
15. PW1 has produced certificate of registration (Exh.15)
issued by Reserve Bank of India in the name of plaintiff. Its contents
indicate that in exercise of powers conferred on the Reserve Bank of
India by sec. 45 IA of Reserve Bank of India Act, 1934; granted
certificate of registration to plaintiff to carry on business of nonbanking
financial institution subject to conditions given on the back page of the
certificate. Further it shows that the company/plaintiff is having valid
certificate of registration dt.31/3/1998. It is applicable to new
companies incorporated on or after January 9, 1997. Thus, in view of
evidence of PW1 coupled with registration certificate, plaintiff is
authorized financial institution to advance loan with interest to
customers. Section 2 (1) (c) of Commercial Courts Act, 2015 given the
definition of "commercial dispute". As per said definition there are 22
categories of commercial dispute. The present dispute comes under the
first clause i.e. commercial dispute means a dispute arising out of (i)
ordinary transactions of merchants, bankers, financiers and traders such
as those relating to mercantile documents, including enforcement and
interpretation of such documents. In view of above facts, plaintiff being
authorized financial institution, there is no bar u/sec. 13 of the
Maharashtra Money Lenders Act, 2014 to try this suit. Hence, I answer
issue no.3 in negative.
AS TO ISSUE No.1:
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16. Evidence of PW1/Rajendra shows that defendant has
taken loan of Rs.50,00,000/ from plaintiff on 18/4/2012. On the date
the defendant has executed promissory note in favour of plaintiff for the
said amount and agreed to pay interest. Contents of promissory note
dt.18/4/2012 (Exh.30) indicates that on 18/4/2012 defendant has
executed promissory note of Rs.50,00,000/ in favour of plaintiff and
agreed to repay the same with interest @ 1.25% per months. Defendant
has evasively denied all contents of plaint. However, she has not taken
any specific defence, why plaintiff has filed this suit against her.
17. Moreover, PW2/Kiran Kakde, a branch relationship officer
of Axis Bank, Branch Mulund (W), Mumbai has proved bank statement
Exh.17 (page no.7 to 30 of list Exh.14). His evidence shows that the
said statement was issued by their bank. As per entry dt.17/4/2012 in
the said statement, a sum of Rs.50,00,000/ debited from account of
plaintiff in the account of defendantSapan Creatives. During cross
examination of PW2, it is also brought on record that he personally
verified the entry mentioned in statement Exh.17. They used to verify
the entry as per the data in their bank software. Nothing is brought on
record to disbelieve the testimony of this witness.
18. In view of evidence of PW1 & 2 and documentary evidence
– promissory note and bank statement, it is proved that defendant has
taken loan of Rs.50,00,000/from plaintiff on 18/4/2012 and agreed to
repay the same with interest @ 1.25% per month. Hence, I answered
issue no.1 in affirmative.
AS TO ISSUE No.2:
19. As per findings on issue no.1 it stands proved that
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defendant has taken loan of Rs.50,00,000/ from plaintiff on
18/4/2012. Therefore, defendant has to prove that she has repaid the
said loan but she has not examined any witness to prove the same. She
only evasively denied all contents of plaint. PW1/Rajendra deposed
that defendant has paid interest on loan amount till 31/03/2017. In last
week of June 2017 defendant approached to the plaintiff and told that
he is intending to pay entire loan amount with interest from April 2017
to June 2017. Accordingly, defendant has issued cheque
dtd.03/07/2017 (Exh.32) amounting to Rs.51,86,986/ to the plaintiff
towards principal and interest amount. However, the said cheque
dishonored on 05/07/2017 due to “exceed arrangement” as per bank
memo (Exh.32). Thereafter, plaintiff has sent legal notice to defendant
on 26/07/2017 (Exh.18 & 33) and demanded outstanding dues.
Defendant has served with the said notice on 28/07/2017 as postal
receipt (Exh.19 & 20), but he neglected to pay the said dues. Therefore,
plaintiff has filed complaint under Section 138 of N.I. Act before
learned JMFC, Thane.
20. As contended in para supra PW2 has prove bank statement
(Exh.17). It shows that defendant has paid interest of Rs.3,11,249/
on3/10/2012, Rs.3,41,251/ on 30/3/2013, Rs.3,43,125/ on
5/10/2013, Rs.3,41,250/ on28/2/2014, Rs.3,43,125/ on4/10/2014,
Rs.3,41,250/ on 31/3/2015, Rs.3,43,125/ on 7/10/2015,
Rs.3,43,125/ on 31/3/2016, Rs.3,43,125/ on 5/10/2016,
Rs.3,41,250/ on 3/4/2017.
21. Evidence of PW1 shows that plaintiff has maintained ledger
account of defendant. Cheque dt.3/7/2017 alongwith bank memo
(Exh.32) for sum of Rs.51,86,986/ was issued by defendant towards
principal and interest amount. However, the said cheque dishonored on
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05/07/2017 due to “exceed arrangement”. Evidence of PW1 & 2 is
supported by above documentary evidence. In view of above evidence,
it is proved that defendant failed to repay the outstanding dues. Plaintiff
claimed principal sum of Rs.50,00,000/ + interest on sum of
Rs.50,00,000/ @ 15% p.a. from 01/04/2017 to 30/06/2017
amounting to Rs.1,86,986/ + interest on sum of Rs.51,86,986/ @
15% p.a. from 01/07/2017 to 31/03/2017 amounting to Rs.5,84,069/
+ interest on sum of Rs.57,71,055/ @ 15% p.a. from 01/04/2018 to
20/01/2019 amounting to Rs.6,99,642/.
22. Promissory note indicates rate of interest @ 1.25% per
month. Plaintiff claims interest @ 15% p.a. Therefore, rate of interest
1.25% per month or 15% per annum is one and the same. Hence,
interest for a period 1/4/2017 to 20/1/2019 on principal sum comes to
Rs. 13,52,083/. Thus, defendant failed to repay principal sum of
Rs.50,00,000/ + interest of Rs.13,62,083/ = Total Rs.63,52,083/.
Accordingly, I answered issue no.2 as above.
AS TO ISSUE No.4:
23. Defendant come with case that this court has no territorial
jurisdiction because office address of plaintiff is Mulund (W), Mumbai.
On this aspect, it is mentioned here that this is a commercial dispute
and the cause of action arose in territorial jurisdiction of this designated
commercial court. Hence, this court has territorial jurisdiction to try and
decide this suit. Thus, I answered issue no.4 in affirmative.
AS TO ISSUE No.5:
24. As per bank statement it is come on record that defendant
has paid interest lastly on 3/4/2017. He issued cheque (Exh.32) on
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3/7/2017 towards repayment of loan amount, which amounts to
acknowledgment of liability. The said cheque came to be dishonoured
on 5/7/2017. Plaintiff has filed suit on 24/6/2019 within three years
from 5/7/2017. Therefore, suit is within limitation. Hence, I answered
issue no.5 in affirmative. Thus, I pass the following order.
ORDER
1. Suit is partly decreed with costs as under.
2. Defendant is directed to pay the plaintiff sum of
Rs.63,52,083/ and interest @ 15% p.a. on principal sum of
Rs.50,00,000/ from the date of suit till realization of the
amount.
3. Decree be drawn up accordingly.
Date : 13/02/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 13/02/2023.
Checked on : 13/02/2023.
Signed on : 13/02/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14/02/2023. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 13/02/2023.
Order signed by P.O. on 13/02/2023.
Order uploaded on 14/02/2023.
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