Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Lodged on : 03.07.2019
Registered on : 18.07.2019
Decided on : 24.01.2020
Duration : 0 Y 6M 8D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
COMMERCIAL SHORT CAUSE SUIT NO. 57 OF 2019
(CNR NO.MHCC010068442019)
1. Minoo Dosabhai Hansotia, age 84 years )
An adult Indian Inhabitant, )
2. Roshan Minoo Hansotia, age 75 years )
An adult Indian Inhabitant, )
both residing at 9, Narielvala Building )
Station Road, Mahim West, Mumbai400016 )...Plaintiffs
Versus )
M/s. Style Code, a proprietory concern )
of Mr.Alpesh Patel, an adult Indian Inhabitant )
having his/their office address at Shop No. 5/6/7, )
Plot No. 53, 54, Swastik Chambers, )
Near APMC Police Station Sector19D, )
Vashi, Navi Mumbai400 705 and )
also having his residential address at )
Flat No.11, Vishal Bhavan, Plot No. 109, )
Garodia Nagar, Ghatkopar(East), )
Mumbai400 077. ) ...Defendant.
Appearance:
Ld.Advocate Mr.L.K.Pirani a/w. Ms.Zinat Pirani for plaintiffs.
Defendant absent.
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CORAM: HIS HONOUR JUDGE
SHRI R.V.KOKARE
DATE :24/01/2020 (C.R.No.31)
O R D E R
This is a commercial suit came to be filed by the plaintiffs for
recovery of amount of Rs.14,75,000/ against the defendant.
Brief facts of the case of the plaintiffs are as under:
2. The plaintiffs are carrying on the business of Customs Clearing
and Freight Forwarding. The defendant is in the business of dealing in
Electrical and Lighting products and carrying on his business in the
name, style and address mentioned in the cause title of the plaint. The
defendant was in need of the financial assistance and approached the
plaintiffs for a loan of Rs.10,00,000/ which the defendant agreed to
pay on demand with interest thereon at the rate of 1.25% p.m.
3. The plaintiffs lent and advanced to the defendant the said loan
amount of Rs.10,00,000/ by Cheque No.353668 dated 4 th November
2015 drawn on Yes Bank Limited, AndheriWest Branch. The said
cheque was debited in the account of the plaintiff on 5th November
2015. The defendant has executed Demand Promissory Note date 4th
November, 2015 promising to pay on demand Rs.10,00,000/ to any
one of the plaintiffs together with the interest thereon at the rate of
1.25% p.m. to secure repayment of the said loan amount. For the period
4th November 2015 to 31st March 2016, the defendant paid to the
plaintiff a sum of Rs.55,875/ towards interest at the said rate of 1.25%
on the said sum of Rs.10,00,000/. The defendant thereafter did not
repay any interest on the said sum.
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4. The plaintiffs further state that they had granted the said loan to
the defendant through the Brokers M//s. Evergreen Enterprises (the
said Broker). The plaintiffs through the said Broker requested the
defendant to pay the interest on the said loan amount from 1st April
2016, however the defendant failed to pay any heed. In the premises,
the plaintiffs therefore requested the said Broker to call upon the
defendant to repay the loan amount. The plaintiffs further state that the
defendant has neither repaid the said loan or any part thereof nor
interest due thereon from 1st April 2016 till the date hereof.
5. The plaintiffs further state that in the circumstances aforesaid, the
plaintiffs, by the advocates notice dated 25th February 2019, called upon
the defendant to pay the said amount of Rs. 10,00,000/ together with
the interest due thereon from 1st April 2016 to 28th February 2019
amounting to Rs.4,33,973/ and aggregating to Rs. 14,33,973/ within
4 days from the receipt hereof, failing which the plaintiffs forwarded
the defendant to institute legal proceedings against the defendant for
recovery of the said sum of Rs.14,33,973/ with further interest
thereon.
6. The plaintiffs further state that in compliance of the provisions of
the Commercial Courts Act, 2015 read with The Commercial Courts
(PreInstitution Mediation And Settlement) Rules, 2018 the plaintiffs
prior to the filing of the present suit submitted to the Mediation on 11th
March 2019, the claim of the plaintiffs which was numbered as 395(a).
The plaintiffs state that the Mediation Officer sent notice to the
Defendant at his address firstly mentioned in the cause title of the plaint
and as the defendant failed to attend the mediation, the Mediation
Officer once again sent to the Defendant at his address secondly
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mentioned in the plaint to appear before him for the mediation.
However, the defendant failed to appear before the Mediation Officer.
In the premises aforesaid, the Mediation was declared as failed.
7. The plaintiffs therefore state and submit that in the premises
aforesaid there is due and payable by the defendant a sum of
Rs.10,00,000/ and interest at the rate of 1.25% p.m. from 1 st April
2016 from the last date interest became due till 31st May 2019 i.e. 38
months amounting to Rs. 4,75,000/ aggregating to Rs.14,75,000/
Hence, this suit for recovery of total amount of Rs.14,75,000/ and
further interest on the said sum of Rs. 10,00,000/ at the rate of 1.25 %
p.m. from the 1st June, 2019 till the date of payment of the realization.
8. Suit summons is duly served on the defendant. Despite of service
of summons, the defendant failed to appear before the Court. Therefore,
on 03/01/2020, exparte order passed against the defendant.
9. Heard advocate Mrs. Zinat Pirani for the plaintiff. In view of the
pleadings of the plaintiffs, following points arise for my determination.
I have recorded, my findings alongwith reasons are as follows.
Sr.Nos. Points Findings
1 Do the plaintiffs prove that they lent and
advanced to the defendant loan amount
of Rs.10,00,000/ by cheque No.353668
dated 4th November, 2015 drawn on Yes
Bank Limited, Andheri West Branch ?
yes
2 Do the plaintiffs prove that the defendant
agreed to pay loan of Rs. 10,00,000/
with interest at the rate of 1.25% p.m. ?
yes
3 Are plaintiffs entitled to recover total
amount of Rs.14,75,000/from the
yes
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defendant?
4 What order and decree ? As per final order
10. In order to prove case of the plaintiffs, the plaintiffs have
examined plaintiff no.2 Mrs. Roshan Minoo Hansotia as P.W.1 by way
of evidence affidavit at Exhibit8. The plaintiffs have produced
documentary evidence under list of documents at Exhibit9. The
plaintiffs oral as well as documentary evidence gone unchallenged.
AS TO POINT NOS. 1 TO 3:
11. On scrutiny of the testimony of the P.W.1Mrs. Roshan Minoo
Hansotia, it appears that this evidence affidavit of the plaintiff is
nothing but it is reproduced of the contents of the plaint. In the
evidence of P.W.1, she has stated that, “ The plaintiffs are carrying on
the business of Customs Clearing and Freight Forwarding. The
defendant is in the business of dealing in Electrical and Lighting
products and carrying on his business in the name, style and address
mentioned in the cause title of the plaint. The defendant was in need of
the financial assistance and approached the plaintiffs for a loan of
Rs.10,00,000/ which the defendant agreed to pay on demand with
interest thereon at the rate of 1.25% p.m. The plaintiffs lent and
advanced to the defendant the said loan amount of Rs.10,00,000/ by
Cheque No.353668 dated 4th November 2015 drawn on Yes Bank
Limited, AndheriWest Branch. The said cheque was debited in the
account of the plaintiff on 5th November 2015. The defendant has
executed Demand Promissory Note date 4th November, 2015 promising
to pay on demand Rs.10,00,000/ to any one of the plaintiffs together
with the interest thereon at the rate of 1.25% p.m. to secure repayment
of the said loan amount. For the period 4th November 2015 to 31st
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March 2016, the defendant paid to the plaintiff a sum of Rs.55,875/
towards interest at the said rate of 1.25% on the said sum of
Rs.10,00,000/. The defendant thereafter did not repay any interest on
the said sum. The plaintiffs further state that they had granted the
said loan to the defendant through the Brokers M//s. Evergreen
Enterprises (the said Broker). The plaintiffs through the said Broker
requested the defendant to pay the interest on the said loan amount
from 1st April 2016, however the defendant failed to pay any heed. In
the premises, the plaintiffs therefore requested the said Broker to call
upon the defendant to repay the loan amount. The plaintiffs further
state that the defendant has neither repaid the said loan or any part
thereof nor interest due thereon from 1st April 2016 till the date hereof.
The plaintiffs further state that in the circumstances aforesaid, the
plaintiffs, by the advocates notice dated 25th February 2019, called upon
the defendant to pay the said amount of Rs. 10,00,000/ together with
the interest due thereon from 1st April 2016 to 28th February 2019
amounting to Rs.4,33,973/ and aggregating to Rs. 14,33,973/ within
4 days from the receipt hereof, failing which the plaintiffs forwarded
the defendant to institute legal proceedings against the defendant for
recovery of the said sum of Rs.14,33,973/ with further interest
thereon. The plaintiffs further state that in compliance of the provisions
of the Commercial Courts Act, 2015 read with The Commercial Courts
(PreInstitution Mediation And Settlement) Rules, 2018 the plaintiffs
prior to the filing of the present suit submitted to the Mediation on 11th
March 2019, the claim of the plaintiffs which was numbered as 395(a).
The plaintiffs state that the Mediation Officer sent notice to the
Defendant at his address firstly mentioned in the cause title of the plaint
and as the defendant failed to attend the mediation, the Mediation
Officer once again sent to the Defendant at his address secondly
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mentioned in the plaint to appear before him for the mediation.
However, the defendant failed to appear before the Mediation Officer.
In the premises aforesaid, the Mediation was declared as failed. The
plaintiffs therefore state and submit that in the premises aforesaid there
is due and payable by the defendant a sum of Rs.10,00,000/ and
interest at the rate of 1.25% p.m. from 1st April 2016 from the last date
interest became due till 31st May 2019 i.e. 38 months amounting to Rs.
4,75,000/ aggregating to Rs.14,75,000/ Hence, this suit for recovery
of total amount of Rs.14,75,000/ and further interest on the said sum
of Rs. 10,00,000/ at the rate of 1.25 % p.m. from the 1 st June, 2019
till the date of payment of the realization.”
12. Inspite of oral evidence of the plaintiffs, the plaintiffs have
produced documentary evidence under list of documents at Exhibit9
are as Original Certified Statement of Saving Bank Account No.
001090700004540 maintained by the Plaintiff in Yes Bank Ltd.,
Andheri West Branch at Exh. 10, Original Demand Promissory Note
dated 4/11/15 for Rs.10 lakh signed by the Defendant at Exh.11,
Original Certified Statement of Saving Bank Account No.
075602000002103 maintained by the Plaintiff in Indian Overseas Bank,
Chakala Branch at Exh.12, Original Letter dated 16th January 2020
issued by Indian Overseas Bank, Chakala Branch at Exh.13, Office Copy
of Advocate's Notice dated 25th February 2019 addressed to the
defendant at Exh.14, Returned notices with Original Registered
A.D.Cards at Exh.15.
13. It is pertinent to note that oral as well as documentary evidence
of the plaintiffs have gone unchallenged. Therefore, I am of the opinion
is that the plaintiffs have proved that the plaintiffs lent and advanced
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Rs. 10,00,000/ as loan amount to the defendant by cheque no. 353668
dated 4th November 2015 drawn on Yes Bank Limited, AndheriWest
Branch. The plaintiffs have also proved that the plaintiffs are entitled to
recover total amount of Rs.14,75,000/ from the defendant. The
plaintiffs are also entitled to recover further interest at the rate of 9%
p.a. at decreetal amount since 1st June,2019 till its fully realization.
Therefore, I have answered point nos.1 to 4 are in affirmative. Hence, I
proceed to pass following order.
ORDER
1. The suit of the plaintiffs is hereby decreed with costs.
2. The defendant shall pay total amount of Rs.14,75,000/ to the
plaintiffs with further interest @ of 9% p.a. on the decreetal
amount from 1st June, 2019 till the date of its realization.
3. Decree be drawn up accordingly.
Date : 24/01/2020 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 24/01/2020
Transcribed on: 24/01/2020
Signed by HHJ: 24/01/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24/01/2020 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.31)
Date of Pronouncement of
Judgment/Order
24/01/2020
Judgment/order signed by P.O on 24/01/2020
Judgment/order uploaded on 24/01/2020
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