Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010066452019
Presented on : 29062019
Registered on : 14012020
Decided on : 07102021
Duration : Y2 M 3 D8
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
COMMERCIAL SUIT NO.06 OF 2020
Shailesh Bhoormal Sanghvi ]
Age: 50 years, of Mumbai, carrying on ]
business as a Sole Proprietor in the name and ]
Style of Gaurav Fabrics at and from 114, Kanuful ]
Niwas, 1st Cross Lane, Old Hanuman Lane, ]
Kalbadevi Road, Mumbai400 002 ].....Plaintiff
V/s
1. Shreepati Investments ]
A firm having its address at 401 Shreepati ]
Arcade, 4th floor, August Kranti Marg, ]
Nana Cowk, Mumbai400 036 ]
2. Mr.Rajendra R. Chaturvedi ]
An adult Indian Inhabitant being the Proprietor]
of Shreepati Investment (RRC) having his 401 ]
Shreepati Arcade, 4th floor, August Kranti Marg,]
Nana Chowk, Mumbai400 036 ]…Defendants
APPEARANCE :
Ld. Adv.Mr.Ramesh Jain for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 07th October, 2021.
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EXPARTE JUDGMENT
(Dictated in Open Court)
This is summary suit under Order XXXVII of the Code
of Civil Procedure, 1908 filed under the Commercial Courts Act,
2015 for recovery of amount from the defendants.
In brief, the facts of the plaintiff's case are as under :
2. The plaintiff is carrying business as a Sole Proprietor
in the name and style of Gaurav Fabrics. The defendants are also
carrying on business as a Sole Proprietor as per the name and style
mentioned in the plaint. On 20.10.2011, the defendant No.1
through defendant No.2 approached the plaintiff for extending
financial assistance by way of business loan. The plaintiff accepted
the request of the defendants and by way of business loan
advanced Rs.10,00,000/ by cheque to the defendants. Said cheque
has been encashed by the defendants. The defendants have
executed receipt of acknowledgment and confirming the receipt of
the amount. The defendants agreed to pay interest at the rate of
1.00% per month and accordingly paid interest on the said amount
from time to time by cheque. The defendant No.1 informed to the
plaintiff that pursuant to proposed conversion of partnership firm
“Shreepati Investment” i.e. Defendant No.1 into a company
“Shreepati Build Infra Investment Limited, the plaintiff’s credit
balance loan account in the book of Shreepati Investments is
transferred to and accepted by the partner i.e. defendant No.2 in
his individual capacity under the trade name M/s.Shreepati
Investment (RRC).
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3. The defendants issued confirmation of account in
writing for the period from 01.04.2015 to 31.03.2016 on
01.04.2016 and from 01.04.2017 to 31.03.2018 on 01.04.2018. By
said confirmation in writing, the defendants admitted and
confirmed the above mentioned facts in writing on 12.02.2019.
The plaintiff issued Advocate's letter to the defendant and called
upon them to make the payment of Rs.10,00,000/ and accrued
interest thereon. In spite of receipt of said letter, the defendants
have failed to make the payment. The last interest was paid @
12% p.a. Therefore, the plaintiff is claiming the interest at the rate
of 12% p.a. The defendants are liable to pay sum of
Rs.13,44,656.33ps. With these contentions, the plaintiff has prayed
for decree of said amount and further interest on Rs.10,00,000/ at
the rate of 12% p.a.
4. Vide Order dated 13.03.2020, the suit is proceeded ex
parte against the defendants. Hence, there is no written statement
of the defendants.
5. Heard the learned Advocate for the plaintiff. No
argument of the defendants. Points for determination along with
my findings thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiff proves that the
defendants have obtained business loan of
Rs.10,00,000/ from the plaintiff?
Yes
2. Whether the plaintiff proves that the
defendants have failed to repay the said
loan and its accrued interest?
Yes
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3. What amount is due and payable by the
defendants to the plaintiff and at what rate
of interest?
Rs.13,44,656.33 @
12% p.a.
4. What order and decree? Suit is decreed.
REASONS
AS TO POINTS NO.1 TO 3:
6. All these points are interlinked with each other, hence
they are taken together for consideration. The plaintiff has
examined Nareshchandra (PW 1) at Exh.08. The plaintiff has
relied on following documents:
1 Copy of Power of Attorney at Exh.10
2 Copy of the receipt dated 20.10.2011 at ArtX2
3 Bank statements showing the relevant entries of
disbursement of amount and interest received by cheques
from time to time at ArtX1
4 Original Confirmations of account in writing at Exh.11 colly
5 Plaintiff’s Advocate’s letter dated 12.02.2019 along with the
postal records in connection with the transmission and
delivery thereof at Exh.12
7. Nareshchandra (PW 1) deposes that on demand of the
defendants he has extended financial assistance by way of business
loan of Rs.10,00,000/ to the defendants. Said loan amount was
advanced by cheque. He further deposes that the defendants issued
confirmation of accounts in writing for the period from 01.04.2015
to 31.03.2016 on 01.04.2016 and from 01.04.2017 to 31.03.2018
and from 01.04.2018 to 31.03.2019. He further deposes that by
said confirmation, the defendants admitted and confirmed the fact
of loan advanced to them. The confirmation of accounts (Exh.11
colly) shows that the defendants have confirmed accounts in
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which closing balance on 01.04.2016 was Rs.11,09,800/. The
confirmation of accounts (Exh.11 colly) at page No.38 shows
closing balance is Rs.12,31,323.00. It shows that the defendants
have acknowledged the debt by said writing. The advance is made
by cheque which is negotiable instrument and therefore, it is not
the loan under the Money Lending Act,2014. The loan was also not
advanced by the plaintiff by way of business of money lending.
Hence, there is no bar of Section 13 of the Money Lenders Act,
2014. The plaintiff deposes that the amount of Rs.13,44,656.33
was the amount due and payable from the defendants. In Exh.D
attached to the plaint, the plaintiff has provided particulars of
claim, in which it is mentioned as follows.
Amount due as per
Confirmation Writing dated
01.04.2018
Rs.12,31,323.00
Add: Interest @ 12% per annum
on Rs.10,00,000/ from
01.04.2018 till filing of the suit
Rs.1,13,333.33
Total Rs.13,44,656.33
8. In view of the same on the date of filing of suit, the
amount of Rs.13,44,656.33 was due and payable from the
defendants to the plaintiff. The plaintiff has claimed rate of interest
at the rate of 12% p.a.
9. In the confirmation of accounts in writing (Exh.11
colly), the defendants have admitted rate of interest as 12% p.a.
Hence, the same can be considered as agreed rate of interest.
Accordingly, the plaintiff is entitled to recover the balance amount
of Rs.13,44,656.33 from the defendants with further interest on
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Rs.10,00,000/ at the rate of 12% p.a. The plaintiff proves that the
defendants have obtained business loan of Rs.10,00,000/ from the
plaintiff and failed to repay the same with accrued interest. The
plaintiff also proves that amount of Rs.13,44,656.33 is due and
payable from the defendant with interest at the rate of 12% p.a.
Hence, I answer point Nos.1 to 3 accordingly.
AS TO POINT NO.4:
10. In view of my findings to point Nos.1 to 3, the suit is
liable to be decreed with costs. In the result, in answer to point
No.4, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendants jointly and severally do pay to the
plaintiff an amount of Rs.13,44,656.33ps (Rupees
Thirteen Lakh Forty Four Thousand Six Hundred
Fifty Six and Paise Thirty Three only) alongwith
interest at the rate of 12% per annum on amount of
Rs.10,00,000/ (Rupees Ten Lakh Only) from the
date of filing of suit till its realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date: 07.10.2021 Mumbai.
Dictated on : 07.10.2021
Transcribed on : 11.10.2021
Signed by HHJ on : 11.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.10.2021 at 4.20 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
07.10.2021
Judgment/order signed by P.O. on 13.10.2021
Judgment/order uploaded on 13.10.2021
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