Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.714/2018
Received on : 12.06.2018
Registered on : 12.07.2018
Decided on : 17.06.2019
Duration : Y M D
01 00 06
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 714 OF 2018
CNR NO.: MHCC010069822018
Smt. Diveya Kishor Shiv
Age : 51 years,
Adult, Indian inhabitant,
R/o Flat No.504, AWing,
Bhavani tower, opp IIT main gate,
Age 51 years, Pawai,
Bombay 400076
Cell Nos.9320141750, 8850346634 ...Plaintiff
V/s.
Mrs. Tresa George & Mr. Vinod Valiyakalayil,
Adult,
Solomon C.H.S. Ltd, opp IIT main Gate,
Pawai, Mumbai 400076 ...Defendants
Appearances:
Advocate Mr. M.B. Jambusaria for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 17th JUNE , 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
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1. Plaintiff has stated that defendants were in need of financial
help in the year of October 2015. Above said defendants Mr. Vinod
Valiyakalayil & Mrs. Tresa George approached to the plaintiff and
requested some financial help for family purposes. On being
acquaintance and having good friendly relation with them she agreed to
pay cash on installment basis.
More particular are as under:
a. Rs.50,000/ cash paid on dated 24.10.2015.
b. Rs.100,000/ cash paid on dated 15.12.2015.
c. Rs.80,000/ cash paid on dated 20.06.2016.
d. Rs.50,000/ cash paid on dated 04.08.2016
e. Rs. 20,000/ cash paid on dated 20.09.2016
Total paid Rs. 3,00,000/.
2. Plaintiff has further stated that the defendants had received total
amount of cash Rs.3,00,000/. For the purpose she had issued
promissory note on dated 20.09.2016 signed in front of witnesses.
3. Plaintiff has further stated that the defendants issued a post
dated cheque along with promissory Note on same i.e. 20.09.2016.
Plaintiff has further stated that the defendants had issued a cheque
bearing No.735460 dated 24.10.2016 for sum of Rs.3,00,000/ drawn
on Bank SOUTH INDIAN BANK, signed by both defendants in favour of
the plaintiff in consideration of cash paid in installment.
4. Plaintiff has further stated that the plaintiff presented the cheque
on dated 24th January 2017. But same was returned unpaid on
24.01.2017. Plaintiff has further stated that the said cheque has been
returned by bank unpaid; because of the amount of money standing to
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the credit of account of the defendants are insufficient to honor the
cheque.
5. Plaintiff has further stated that plaintiff in duce course of the
cheque, she made a demand for the payment of the said amount of
money by giving notice in writing to the defendants on dated
27.12.2017, by Registered Post, defendants had received intimation, but
he does not gave any response of the postal department. Ultimately
notice envelope was returned on dated 30.12.2018, with remark
“INTIMATION”.
6. Plaintiff has further stated that plaintiff sent second Notice dated
07.01.2018 through his Advocate. Defendants received Notice on
08.01.2018. Plaintiff received acknowledgment on dated 12.01.2018.
Plaintiff has further stated that defendants have failed to make the
payment of the amount of money to the plaintiff in due course of the
time, within 15 days of time of received notice, but the defendants gave
vague reply on phone it shows that the defendants had received notice.
He had no intention to make payment. Therefore, plaintiff filed this
suit.
7. Defendants failed to appear in the suit, therefore, suit has
proceeded exparte against both defendants.
8. Heard the Ld. Advocate for the plaintiff.
9. Following points arise for determination and their findings
followed by reasons are as stated below:
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Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
sum of Rs.3,78,750/ from
defendants along with interest @
15% p. a. on the sum of
Rs.3,00,000/ from the date of filing
of the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
10. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.8 Promissory Note dated 20.09.2016.
2. Exh.9 Dishonour cheque dated 24.10.2016.
3. Exh.10 Return Bank Memo dated 24.01.2017
4. Exh.11 First Legal Notice dated 27.12.2017.
5. Exh.12 Second Legal Notice dated 07.01.2018.
AS TO POINT NOS. 1 AND 2:
11. Plaintiff has filed evidence of herself in the form of affidavit
below Exh.6 and she has stated in her evidence that on their she gave
cash loan of total Rs.3,00,000/ in cash in following manner:
a. Rs.50,000/ cash paid on dated 24.10.2015.
b. Rs.100,000/ cash paid on dated 15.12.2015.
c. Rs.80,000/ cash paid on dated 20.06.2016.
d. Rs.50,000/ cash paid on dated 04.08.2016
e. Rs. 20,000/ cash paid on dated 20.09.2016
Total paid Rs. 3,00,000/.
12. Plaintiff has further stated that for consideration of cash paid to
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her, they gave one post dated cheque dated 24.10.2016 of South India
Bank, duly filled by their signature on the cheque from their joint
account. The cheque was filled rupees three lakh only. Plaintiff has
further stated that the cheque was handed over to her for the cash loan
given, and on presentation to its Banker through his banker, it was
returned unpaid on dated 24.01.2017, hence defendants had committed
an offence.
13. Plaintiff has further stated that Legal Notice dated 27.12.2017 of
intimation sent to the defendants at their residential address and
reached on dated 29.12.2017. But defendants does not collected postal
envelope therefore returned envelope and acknowledgement, postal
track record is a legal document.
14. Plaintiff has further stated that defendants have failed to make
payment of loan amount in due course of time. But on receiving notice
started vague reply on phone an threatened him.
15. Plaintiff has adduced Promissory Note, Dishonoured cheque,
Return Bank Memo, First Legal Notice and Second Legal Notice on
record as documentary evidence. The oral evidence of plaintiff is
corroborated by documentary evidence. Defendants have failed to
challenge all the allegations in the plaint and evidence of plaintiff.
Therefore, plaintiff has proved that she is entitled to get sum of
Rs.3,78,750/ from both defendants.
16. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
amount of Rs.3,00,000/ from the date of filing of the suit till its
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realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Both defendants are jointly directed to pay sum of Rs.3,78,750/ to
plaintiff along with interest @ 9% p.a. on the sum of Rs.3,00,000/
from the date of filing of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 17.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 17.06.2019
Transcribed on : 17.06.2019
Signed on : 17.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.07.2019 At 11:46 a.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
17.06.2019
Judgment/Order signed by P.O. on 17.06.2019
Judgment/Order uploaded on 10.07.2019
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