Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010065252019
Presented on : 26/09/2019
Registered on : 21/08/2019
Decided on : 01/04/2022
Duration : Y M D
02 05 15
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO. 361 OF 2021
(SUMMARY SUIT NO.828 OF 2019) Ex.19
Mr. Bharat Govindlal Zaveri
Age: 65 years, Occ: Business,
Residing at N2, Cuffe Castle,
Cuffe Parade, Mumbai400 005. ..Plaintiffs
VERSUS
1. M/s. D.S. Kulkarni & Company
A Partnership firm having its
registered office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005.
And
"DSK House", 5th floor
Veer Savarkar Marg(Cadell
Road) next to Mayor's
Bungalow, Shivaji Park,
Mumbai400 028.
2. Sakharam Sadashiv Kulkarni
partner of M/s. D.S.Kulkarni &
Company, having office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005.
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3. Deepak Sakharam Kulkarni
partner of M/s. D.S.Kulkarni &
Company, having office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005.
4. Hemant Neelkanth Phadke
partner of M/s. D.S.Kulkarni &
Company, having office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005.
5. Jyoti Deepak Kulkarni.
partner of M/s. D.S.Kulkarni &
Company, having office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005.
6. Makrand Sakharam Kulkarni
partner of M/s. D.S.Kulkarni &
Company, having office at " DSK House"
1187/60, J.M.Road, Shivaji Nagar,
Pune411005. ..Defendants
Ld. advocate Rajesh Maravoor alongwith Ld. advocate Mallikarjun for
plaintiff.
DefendantsExparte.
ORAL ORDER
(1st day of April 2022)
Suit is for recovery of an amount of Rs.29,09,533/
alongwith further interest at the rate of 18% p.a. on principal amount of
Rs.20,000,00/ from the date of filing of suit till it's realization.
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Briefly stated, plaintiff's case, is as under:
2. Defendant No.1 is a partnership firm. Defendant Nos.2 to
6 are partners of defendant No.1partnership firm. Plaintiff was
acquainted with defendants. Defendants, through defendant Nos.2 to 6,
approached plaintiff and requested for finance of Rs.20 lacs for the
business purpose. Defendants assured to pay interest at the rate of 12%
p.a. on said amount.
3. In pursuance to request of defendants, plaintiff gave an
amount of Rs.20 lacs to defendant No.1 by two cheques. Defendants
paid interest at the rate of 12% p.a. on said amount till 31/12/2016.
However, they failed to pay interest thereafter. Plaintiff made demand
of outstanding amount with defendants. Defendants offered to pay
principal amount and accordingly issued four cheques of Rs.5 lacs.
Plaintiff presented all these four cheques with his bank for encashment.
Three cheques were dishonoured for the reason of 'funds insufficient'
and one cheque dated 15/11/2016 was returned with the remark 'stale
cheque'. Defendants issued four cheques of Rs.20 lacs in order to repay
the amount taken by them. However, they have not honoured the
cheques, therefore, plaintiff issued notice dated 01/03/2017 asking
defendants to pay the amount of Rs.20 lacs. Defendants received said
notice. They gave reply and denied their liability. Hence, Summary Suit
is filed under order 37 Rule 2 of C.P.C.
4. As per Service Affidavit (Ex.7), defendant Nos.1 to 6 were
deemed to be served with writ of summons. But, they failed to tender
their appearance. Therefore, suit proceeded without appearance of
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defendant Nos.1 to 6.
5. Heard Ld. advocate for plaintiff.
6. Following points arise for determination, findings thereon
for the reasons to follow are as under:
Sr. No. Points Findings
1. Does the plaintiff prove that an
amount of Rs.29,09,533/ is
outstanding against defendants?
Proved
2. What order? Suit is decreed as per
final order.
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff has filed claim
affidavit of PW1 Bharat Zaveri. Plaintiff relied upon following
documents:
Ex.11 to Ex.14 colly Cheques and return memos
Ex.15 Office copy of notice dated 01/03/2017
Ex.16 Postal Receipts and acknowledgment
Ex.17 Reply of defendant
Ex.18 Particulars of claim
8. PW1 Bharat Zaveri deposes that he paid an amount of
Rs.20 lacs to defendant No.1 by two cheques. In order to return said
amount, defendants issued four cheques. PW1 Bharat Zaveri has stated
the particulars of four cheques issued by defendants. PW1 Bharat
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Zaveri further testifies that three cheques were dishonoured for the
reason of 'funds insufficient' and one cheque dated 15/11/2016 was
returned with the remark 'stale cheque'. He issued notice dated
01/03/2017 asking defendants to pay outstanding amount, but,
defendants failed to pay outstanding amount.
9. As discussed above, suit proceeded without appearance of
defendants. Plaintiff's claim is based upon dishonoured of cheques. It is
well supported by original documents filed on record. Therefore,
plaintiff's claim u/o 37 Rule 2 of C.P.C. needs to be accepted.
10. Plaintiff claimed interest at the rate of 18% p.a. from the
date of issuance of cheque as per Sec.80 of Negotiable Instruments Act.
By applying interest at the rate of 18% p.a. from the date of issuance of
cheques on principal amount of Rs.20 lacs, outstanding amount comes
to Rs.29,09,533/.Thus, plaintiff has succeeded to prove that an amount
of Rs. 29,09,533/ is outstanding against defendants. Point No.1
answered accordingly.
11. Plaintiff claimed interest at the rate of 18% p.a. from the
date of filing suit till it's realization. Considering the nature of
transaction and the fact that claim is based upon dishonour of cheques,
plaintiff is entitled to the interest at the rate 18% p.a. from the date of
filing of suit till it's realization. Hence, following order.
ORDER
1. Commercial suit No. 361 of 2021 is decreed with costs.
2. Defendants shall jointly and severally pay an amount of
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Rs.29,09,533/ (Rupees Twenty Nine Lacs, Nine Thousand, Five
Hundred and Thirty Three only) alongwith interest @ 18 % p.a. on
principal amount of Rs. 20,00,000/ to plaintiff from the date of the suit
till it's realization within two months.
3. Court fees be refunded as per (E) Rules framed under Section 11(2)
of the Bombay City Civil Court Act, 1948, for the refund of Institution
Fee.
4. Decree thus follow.
(S. U. HAKE)
JUDGE,
Dt. 01/04/2022 CITY CIVIL COURT, GR.MUMBAI.
Dictated on : 01/04/2022
Transcribed on : 01/04/2022
Signed on : 04/04/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
05.04.2022 11.20 pm Tanushree C.Kamble
Name of the Judge HHJ Shri S.U.HAKE
(CR No.14)
Date of Pronouncement of
Judgment/Order.
01.04.2022
Judgment/order signed by P.O on 04.04.2022
Judgment/order uploaded on 05.04.2022
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