Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Suit No.649/2018
MHCC010066212018 Presented on : 04/06/2018
Registered on : 21/06/2018
Decided on : 19/04/2024
Duration : 05Y 10M 16D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT NO.20
SUMMARY SUIT NO.649 OF 2018
(CNR NO.MHCC01-006621-2018)
Mr. NIRAV ASHWIN MANGE
AN ADULT, OCCUPATION : BUSINESS,
RESIDING AT : 802, SAI VAIBHAV CHS, R. B. MEHTA
ROAD, JULELAL CHOWK, OPP. VIKRANT CIRCLE,
GHATKOPAR (E), MUMBAI – 400 077.
]
]
]
]
] ..PLAINTIFF
Versus
Mr. BINAYKUMAR B. SHRIVASTAVA
PROP. OF SHIVA RUBBER, AN ADULT,
OCCUPATON : BUSINESS, HAVING OFFICE
ADDRESS AT : A-55, M.I.D.C., NANGOAN PATH,
NH-6, AMRAVATI- 444901, MAHARASHTRA.
]
]
]
]
] ..DEFENDANT
Appearance :-
Learned Advocate Sunil Dubey for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 19/04/2024.
J U D G M E N T
1 This summary suit is filed for recovery of amount
contending that plaintiff has advanced friendly loan of Rs.15,00,000/-
to the defendant with interest at the rate of 24% per annum. The
amount of loan was advanced by way of R.T.G.S. through bank on
-- 1 of 5 --
..2.. Summary Suit No.649/2018
30/04/2015. The defendant confirmed the loan amount by
confirmation of account in each year. It is further contended that
despite several reminders, defendant failed to pay the amount as
agreed, therefore, on 07/03/2018, plaintiff issued notice through
advocate calling upon the defendant to pay the amount of
Rs.15,00,000/-, but in vain. Consequently, plaintiff was constrained to
file this instant suit for recovery of amount alongwith interest at the
rate of 24% per annum.
2 The defendant in response to the writ of summons,
tendered his appearance, thereafter, the plaintiff took out summons for
judgment No.27 of 2019. The defendant resisted the contention of the
plaintiff in suit and summons for judgment, and filed reply claiming
unconditional leave to defend. The summons for judgment was
disposed and conditional leave to defend was granted on depositing of
Rs.15,00,000/- by the defendant. The defendant till date failed to
deposit the amount of Rs.15,00,000/-, hence, suit is proceeded further
as per order in roznama dated 16/03/2023.
3 Heard learned advocate for the plaintiff. None present for
defendant. There is nothing on record placed by the defendant to show
that it has complied the order of this Court. Therefore, due to absence
of compliance of conditional order of deposit of amount for leave to
defend, the suit was required to be proceeded further as per the
provisions of order XXXVII Rule 3(6)(b) of the Code of Civil Procedure,
Suit deserves to be decreed.
-- 2 of 5 --
..3.. Summary Suit No.649/2018
4 At the stage of hearing, the plaintiff relied on the affidavit
of evidence tendered alongwith various documents as per list
(Exhibit-07). Plaintiff has filed original copy of passbook (Exhibit-09)
and copies of Confirmation of Accounts (Exhibit-10 and 11), copy of
letter dated 04/10/2017 (Exhibit-12). The copies of confirmation of
accounts, shows that the defendant has confirmed the amount. The
plaintiff has also filed copy of notice dated 07/03/2018 (Exhibit-14)
and reply of defendant dated 01/05/2018 (Exhibit-16). In the reply to
summons for judgment No.27 of 2019, in paragraph No.10, defendant
accepted the receipt of amount of Rs.15,00,000/- by the plaintiff
though he is claiming that the nature of transaction was different, but
on failure to comply the order under summons for judgment No.27 of
2019, he has to face inconvenience as he is not able to raise his
defence to prove difference in the nature of transaction, consequently,
the suit deserves to be decreed as per the Order XXXVII 3(6)(b) of the
Code of Civil Procedure.
5 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 24% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e. date
of notice of plaintiff’s advocate 07/03/2018, till its full realisation.
-- 3 of 5 --
..4.. Summary Suit No.649/2018
6 As the defendant has made plaintiff constrained to file the
instant suit, he is also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Suit No.649 of 2018, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.15,00,000/- alongwith interest at the rate of 9%
from 07/03/2018, till its full realisation from the
defendant.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 19/04/2024 C.R. No.84.
Dictated and Typed on : 19/04/2024.
Draft checked on : 19/04/2024.
Signed on : 20/04/2024.
-- 4 of 5 --
..5.. Summary Suit No.649/2018
“Certified to be true and correct copy of the original signed order”.
22/04/2024
at about 4.50 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 19/04/2024
Order signed by Hon'ble Judge on : 20/04/2024
Order uploaded on : 22/04/2024
at about 4.50 p.m.
-- 5 of 5 --