Final Order 2

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.366/2021 1 Judgement
MHCC010063472019
Presented on : 21062019
Registered on: 17092019
Decided on : 08022024
Duration : YY: MM: DD
04: 07: 18
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 366 Of 2021
Exhibit25
Mr. Ghisulal Hemchand Jain
Age:70 years, Occ.: Business,
Residing at: Flat No.1004, A wing,
Shreepati Arket, Navakal road, Pimpal wadi,
Near C. P. Tank, Mumbai 400 004. ... Plaintiff.
V/s.
1. Silver Arch Builders and Promoters,
A Partnership Firm duly registered with the
registers of firm bearing No.BA85228,
Having its place of business at Sai Kirti Co.
Op. Hsg. Soc. Ltd, Anand Patil Road, Dadar,
Mumbai 400 028.
2. Mrs. Usha Manohar Shah,
Age: Not Known, Adult, Occ.: Business,
Residing at: Sadanand Apartment, 7 th
Floor, N. M. Kale Road, Agar Bazaar,
Mumbai 400 028.
3. Mr. Haresh Navanitari Mehta,
Age: Not Known, Adult, Occ.: Business,
Residing At: 601/602, New Shree Sagar,
Dongarshi Road, Mumbai400 006.
4. Mrs. Mayuri Haresh Mehta,
Age: Not Known, Adult, Occ.: Business,
Residing At: 601/602, New Shree Sagar,
Dongarshi Road, Mumbai400 006. ... Defendants.
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Com. Suit No.366/2021 2 Judgement
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 08th DAY OF FEBRUARY 2024
: Appearances:
Ld. Advocate Sagar Gala for Plaintiff.
Ld. Advocate Rashmi More for defendant Nos.1, 3 and 4.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of sum of
Rs.26,98,699/ along with further interest on the principal sum of
Rs.15,00,000/ @ 12 % per annum from the date of filing of the suit till
its full realization.
Herein it is to be seen that, initially the suit was registered as
Summary Suit No. 916 of 2019, but later on it was converted into
commercial Summary Suit as per physical verification certificate dated
03.04.2021 by the then HHJ.
2. Briefly stated facts of the case are as under:
The plaintiff is engaged in the business of making jewellery. The
defendant no.1 is a partnership firm engaged in the business of
construction and redevelopment of real estate and such other like
businesses. Defendant Nos.2 to 4 are the partners of defendant No.1
and are responsible and liable, jointly and severally, for the acts and
deeds done by any or all of them.
3. Defendants have business exigencies and thus approached the
plaintiff to lend money as friendly loan as defendants were in need of
money for some urgent work and made the plaintiff advance money
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Com. Suit No.366/2021 3 Judgement
and part with principal amount of Rs.15,00,000/. At that time,
defendants made representation that they shall returned said amount
within a short terms alongwith interest @ 12% per annum payable
quarterly in favour of the plaintiff. Believing said representation, the
plaintiff part with the sum of Rs.15 Lakhs by issuing two cheques
bearing no.059573 dated 19.02.2010 of Rs. 06 Lakhs and cheque
No.059575 dated 25.02.2010 of Rs.9 Lakhs drawn of Bank of India,
Bullion Exchange Mumbai. Said cheques were duly credited in the
account of defendant no.1 on 20.02.2010 and 02.03.2010 respectively.
Defendants have also issued receipts dated 19.02.2010 acknowledging
the payment of Rs.6 Lakhs. The plaintiff had obtained certificate for
debit of amount of Rs. 9 Lakhs from his bank which was received on
29.08.2018 confirming the said payment.
4. Defendant no. 1 Firm has furnished confirmation of account
from the year 2010 till 2017 duly endorsed and acknowledging the
abovementioned facts and figures under their seal and signatures. In
the last statement furnished by defendant firm for the year 2017, they
have issued part payment of Rs.27,988/ and Rs.25,000/ on
12.04.2017 and 17.04.2017 by cheques no.368595 and 368608 drawn
on Bank of Baroda respectively. The opening balance as on 01.04.2017
was Rs.20,27,988/.
5. As per the statement of account maintained by the plaintiff, the
balance amount of Rs.26,98,699/ is due and payable and outstanding
from the defendant’s receivable by the plaintiff up to 31.03.2019. The
plaintiff made several requests to the defendants to repay the same.
However, defendants failed and neglected to pay the same. Hence, the
plaintiff had issued demand notice dated 10.11.2018, thereby called
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Com. Suit No.366/2021 4 Judgement
upon defendants to repay the loan and interest. Despite of receiving
notices, defendants neither replied nor compiled. Hence, the suit.
6. The plaintiff has taken out Summons for Judgment No.55 of
2020. Defendants No.1, 3 and 4 granted leave to defend subject to
depositing of sum of Rs.20,27,988/ within period of ten weeks from
the date of order i.e., 15.12.2021. Defendants further directed to file
written statement within the period of 30 days from the date of deposit.
However, defendants failed to comply with the order dated 15.12.2021.
Hence, vide order dated 16.03.2022, my Ld. PredecessorinCourt
proceeded suit Exparte.
7. The plaintiff has filed affidavit of examination in chief of PW1
Ghisulal Hemchand Jain at Exh.8. The plaintiff relied on documents
filed alongwith list Exh.9.
8. Heard, the Ld. Advocate for the plaintiff. He also filed written
notes of argument (Exh.24). Perused the record.
9. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.26,98,699/
along with further interest on the
principal sum of Rs.15,00,000/ @
12 % per annum from the date of
filing of the suit till its full
realization as claimed?
Partly Yes
2. What Order and Decree? As per final order.
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Com. Suit No.366/2021 5 Judgement
REASONS
As to point no.1:
10. PW1 Ghisulal Jain deposed as per the contents of the plaint
averments; hence I do not want to reproduce the same to avoid the
repetition. The plaintiff has filed Copy of Certificate issued by Registrar
of Firm dated 24.10.2018 (Exh.10); Original Bank Passbook (Exh.11);
Original Receipts dated 19.02.2010 (Exh.12); Photocopy of Letter dated
27.08.2018 (Exh.13); Photocopy of Certificated dated 29.08.2018
(Exh.14); Original Copies of Confirmation of Account from the year
2010 till 2017 (Exh.15 Colly); Office Copy of Notice Dated 10.11.2018
(Exh.16), Photocopy of Statement of Income Tax Liability (Exh.17);
Photocopy Statement of Accounts (Exh.18); Photocopy of Consent
Terms dated 21.07.2022 (Exh.19); Original Letter dated 21.07.2022
(Exh.20); Copy of Complaint u/sec.138 of N. I. Act (Exh.21) and Copy
of Three Cheques along with Bank return Memo (Exh.22 Colly).
11. Upon perusal of documents it reveals that the plaintiff had given
loan of Rs. 15 Lakhs as the defendants facing business exigencies.
Defendants failed to repay the said amount. Therefore, the plaintiff had
issued notice dated 10.11.2018 and demanded the said amount. The
plaintiff had filed the copy of original receipt (Exh.12) and the copy of
notice at Exh.16. Herein it is to be seen that the defendants have
admitted their liability, thus, have executed consent terms. Photocopy
of the same is filed on record, it is at Exh.19. But later on, defendants
have turned up and did not enter into the compromise. It is submitted
that; defendants have paid part payment of Rs.27,988/ and 25,000/
vide cheque dated 12.04.2017 and 17.04.2017. The plaintiff has also
filed Original Copy of three cheques issued by the defendants in favour
of the plaintiff on 20.12.2022, 20.01.2023 and 20.02.2023 of Rs.
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Com. Suit No.366/2021 6 Judgement
2,70,000/, Rs.1,25,000/ and Rs. 1,30,500/ respectively. As the said
cheques were dishonored upon presentation, hence, the plaintiff has
filed complaint under section 138 of the N. I. Act.
12. Herein it is further to be seen that vide order dated 15.12.2021
leave to defend is granted to defendants upon depositing a sum of
Rs.20,27,988/ within ten weeks from the date of order. However,
defendants failed to deposit the said amount. Thus, in view of
provisions of Order XXXVII Rule 6 (b) of the Code of Civil Procedure,
the plaintiff is entitled for Decree. Hence, in view of my above
discussion and considering pleadings and evidence, the plaintiff duly
proved that he is entitled for recovery of principal amount of Rs.15
Lakhs from defendants. So far as, rate of interest is concerned, I am of
the view that looking to the nature of business transaction and current
bank rate of interest, if the defendant is directed to pay the interest @
9% p.a., then it will subserve the purpose. Thus, in view of my above
discussion, I answer to point No.1 in partly affirmative.
As to Point No.2.
13. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.366 of 2021 is partly decreed with Costs.
2. Defendants do pay, Jointly and Severally the amount of
Rs.15,00,000/ with further interest @ 9% per annum from the due
date till its full realization.
3. Decree be drawn up accordingly.
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Com. Suit No.366/2021 7 Judgement
4. Commercial Suit No.366 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.08.02.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 08.02.2024
Directly typed on : 08.02.2024
Signed on : 08.02.2024
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Com. Suit No.366/2021 8 Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 09.02.2024 NAME OF STENOGRAPHER
TIME: 01.50 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
08.02.2024
JUDGMENT/ORDER signed by
P.O. on
08.02.2024
JUDGEMENT/ORDER uploaded on 09.02.2024
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