Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.723/2019
MHCC010067342019 Presented on : 01/07/2019
Registered on : 17/07/2019
Decided on : 12/02/2024
Duration : 04Y 07M 12D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT-12
SUMMARY CIVIL SUIT NO.723 OF 2019
(CNR NO.MHCC01-006734-2019)
YANKAVVA YALLAPPA ANDREDI,
Of Mumbai, an adult Indian Inhabitant, having
her address at Room No.3,Chawl No.G/27,
Matunga Labour Camp, Mumbai – 400 019
through C.A. Lakshya Yallappa Andredi.
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] ..PLAINTIFF
VERSUS
AJAY GANGARAM KAMBLE
of Mumbai, an adult Indian Inhabitant, working
for gain with Working for gain with B.M.C. “B”
Ward, Conservancy Dept, 121 Ramchand Bhat
Marg, Mumbai – 400 009. Emp Code No.4116361.
Residing at : Room No.28, Municipal Chawl No.42,
Laxman Jadhav Marg, Jail Road (North),
Mumbai – 400 009.
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] ..DEFENDANT
Appearance :-
Learned Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 12/02/2024.
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J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.2,35,309.58/- under the demand promissory note. The plaintiff has
come with the case that she had advanced loan of Rs.2,00,000/- to the
defendant, who executed demand promissory note on 12/06/2018.
The defendant had agreed to pay the amount of Rs.2,00,000/- on
demand alongwith interest at the rate of 18% per annum. However,
defendant did not pay the loan amount, therefore, the plaintiff is
entitled for recovery of amount alongwith interest at the rate of 18%
per annum.
2 The writ of summons was served upon defendant vide
Exhibit-05, but the defendant refused failed to appear before the Court
and hence, as per the order in
roznama dated 11/09/2019, suit
proceeded ex-parte against defendant. Later on, the defendant took
out notice of motion No.4509 of 2019 for allowing to tender his
appearance, but did not proceed with the notice of motion, hence, the
notice of motion No.4509 of 2019 was dismissed in default.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the
defendant has executed demand
promissory note of Rs.2,00,000/- ?
Affirmative
2 Does the plaintiff prove that she is
entitled to charge interest as prayed for ?
Partly Affirmative
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POINTS FINDINGS
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the authorized
person of plaintiff entered the witness box and relied on various
documents under list (Exhibit-08). Heard learned advocate for
plaintiff.
As to point Nos.1 to 3 :-
5 The authorized person of plaintiff has tendered his Claim
Affidavit (Exhibit-07) alongwith documents as per list (Exhibit-08). On
perusal of demand promissory note (Exhibit-09), it reveals that it bears
signature and thumb impression of the defendant. Inconsequence of
failure to pay the amount under the demand promissory note, the
plaintiff has issued a notice on 10/05/2019. Thus, the plaintiff is
entitled for recovery of amount under the demand promissory note.
The plaintiff is a money lender having license bearing No.RBC-2455,
hence, she is entitled to recover the amount as a money lender. She
filed another document related to her license, Form-10 and also
cashbook. Thus, there is no reason to disbelieve the contentions of
plaintiff, which remains unchallenged. Hence, suit deserves to be
decreed as per the provisions of Order XXXVII Rule 2(3) of the Code of
Civil Procedure.
6 There is nothing on record to show that the defendant has
ever paid any amount under the demand promissory note. The absence
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No.723/2019
and omission to appear before the Court on being served with the writ
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, it is established that the
defendant has executed the demand promissory note for
Rs.2,00,000/-.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% 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, she 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. notice
of advocate of plaintiff dated 10/05/2019, till its full realisation. In
view of above discussions, I answer point No.1 in affirmative and point
Nos.2 and 3 in partly affirmative.
8 As the defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
ORDER
1. Summary Civil Suit No.723 of 2019, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.2,00,000/- alongwith interest at the rate of 9% per
annum from 10/05/2019, till its full realisation from
the defendant.
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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 : 12/02/2024 C.R. No.84.
Typed on : 12/02/2024.
Signed on : 12/02/2024.
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“Certified to be true and correct copy of the original signed order”.
14/02/2024
at about 11.00 a.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 : 12/02/2024
Order signed by Hon'ble Judge on : 12/02/2024
Order uploaded on : 14/02/2024
at about 11.00 a.m.
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