Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 (J- Comm.Suit 86/19)
Received on : 8.7.2019
Registered on : 20.8.2019
Decided on : 29.1.2020
Duration: .. yrs.06 Months 21 days.
CNR No.MHCC010069912019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO. 86 OF 2019.
MOOLCHAND DALICHAND JAIN, )
Aged 78 yrs., Mumbai Inhabitant, )
having address at C/9, Kakad Estate, )
R.G. Thadani Marg, Worli, )
Mumbai. )...Plaintiff
Versus
HARESH N. MEHTA )
An adult of Mumbai Inhabitant, )
residing at 2601, Shiv Tapi, )
26th Floor, Harischandra Goregaonkar Marg, )
Gamdevi, Mumbai 400 007 )...Defendant
Appearance:
Adv. Mr. Rahul Chaube for plaintiff.
None for defendant. Suit proceeded exparte.
CORAM : HHJ Shri V.V. Vidwans
(Commercial Court)
C. R. No.03.
DATE : 29.1.2020.
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2 (J- Comm.Suit 86/19)
JUDGMENT
1. This is a Suit filed by plaintiff as Summary Suit under Order
XXXVII Rule 2 of CPC. However considering the nature of the claim of the
plaintiff in the suit, it came to be treated as “Commercial Suit” as per
provisions of Sec.2 (1)(c) of Commercial Courts Act, 2015.
2. Before institution of the suit, the matter had gone for pre
institution mediation u/s. 12A of Commercial Courts Act and after issuance
of notice to the defendant he had failed to turn up before mediation
Centre/ District Legal Services Authority, (DLSA) Mumbai and therefore, a
Nonstarter Report dated 29.6.2019 was received. Thereafter the suit was
instituted.
3. On issuance of writ of summons to the defendant, the
defendant has failed to appear before the court inspite of service of writ of
summons on 12.9.2019 by speed post, as per affidavit of service Exh.2. As
per postal acknowledgment (Ex.A) the speed post packet was duly received
by defendant under signature and seal on behalf of Shiv Tapi Coop.
Housing Society. Therefore, as per order dated 6.11.2019, the suit had
proceeded exparte against the defendant.
4. The plaintiff has led documentary and oral evidence in the suit
vide list of documents as per (Exh.3) and affidavit of evidence (Exh.4).
5. In the first Case Management Hearing, before trial, I had
heard Ld. Counsel for the plaintiff on exhibiting the documents and I had
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3 (J- Comm.Suit 86/19)
marked and exhibited the documents filed with the list Exh.3 Original
receipt duly signed by the defendant is marked and exhibited as Exh.5.
Office copy of the notice given by the Ld. Counsel for plaintiff bearing his
signature is marked as Exh.6 and thereafter the plaintiff had closed
evidence by filing pursis at Exh.7.
6. I have heard oral submissions of Ld Counsel for the plaintiff in
the suit.
7. Following points arise in the suit for determination and I have
recorded my findings against them with reasons as under :
POINTS :
1. Whether the plaintiff has proved suit transaction with the
defendant i.e. the plaintiff had extended financial help/
assistance to the defendant by way of business loan and
defendant had agreed to repay the same along with
interest @ 12% p.a. ?
2. Whether the plaintiff has made out a case for passing
exparte decree in the suit as prayed ?
3. What order and decree ?
FINDINGS:
1. Yes
2. Yes.
3. Suit decreed with costs.
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4 (J- Comm.Suit 86/19)
REASONS
As to Points no. 1 and 2 :
8. Ld. Counsel for the plaintiff, at the outset, submitted that, the
plaintiff is an adult and Karta of Moolchand Dalichand Jain (HUF) and
residing at the address given in the cause title of the suit. He is engaged in
the business of real estate. The defendant had approached the plaintiff
with a request to extend financial help for expansion of his business in the
real estate and had agreed to repay the loan advanced in the business
along with interest @12 % p.a. As per averments made in paragraphs 3
and 4 of the plaint, the plaintiff had advanced a sum of Rs.5,00,000/ to
the defendant by Account Payee Cheque bearing no. 003212 dated
3.6.2009 drawn on Union Bank of India, Worli, Mumbai. The defendant
had acknowledge the receipt of the said amount on executing in writing a
receipt dated 3.6.2009 in favour of the plaintiff.
9. Ld Counsel for the plaintiff further submitted that, as per
agreement and understanding between the parties, the defendant had paid
interest to the plaintiff @ 12% p.a. by cheques and cash after deducting
TDS till 31.3.2016 and has also paid an amount of Rs.1,00,000/ to the
plaintiff towards principal sum/ amount. Thus, after appropriating and
adjusting the repayment made by defendant an amount of Rs.4,00,000/
was due along with accrued interest from 1.4.2016 but the defendant had
thereafter failed and neglected to repay the balance amount of principal
sum as well as accrued interest on the due amount.
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5 (J- Comm.Suit 86/19)
10. The plaintiff had made repeated demands by issuing letters/
making phone calls and also personal visits to the defendant, but in vain.
Therefore, the plaintiff through his advocate had issued legal notice on
10.10.2018 to the defendant calling upon him to make payment as a last
recourse. Inspite of said notice, the defendant has failed to repay the due
amount. Hence, this Suit.
11. Ld Counsel for the plaintiff has relied upon averments in the
plaint and documents filed on record vide Exhs.5 and 6, which shows that
the defendant has given receipt in favour of the plaintiff dated 3.6.2009 for
having received the financial assistance i.e. business loan in the sum of
Rs.5 Lac. It is duly stamped with revenue stamp and signed by the
defendant. The document at Exh.6 is a legal notice dated 10.10.2018,
which is office copy of the notice duly signed by the advocate for the
plaintiff and the plaintiff through his evidence affidavit has proved the both
documents and therefore, I find that, the plaintiff has discharged his
burden in the suit and proved the claim against the defendant. As per
avernement made in paragraph 8 of the plaint, the plaintiff has claimed
recovery of Rs.5,25,000/ from the defendant which consists of principal
sum of Rs.4,00,000/ and sum of RS.1,25,000/ being interest on the
amount due @ 12% p.a. I find that, since the suit has proceeded exparte
the plaintiff's claim in the suit has gone unchallenged and no defence for
the defendant in the suit is brought on record, which can be considered by
the court. Hence, by answering points no.1 and 2 in the affirmative, I
proceed to pass following order :
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ORDER
1. Suit decreed with costs.
2. The defendant shall pay to the plaintiff a sum of
Rs.5,25,000/, including principal loan amount of
Rs.4,00,000/ plus Rs.1,25,000/ accrued interest @ 12%
p.a. on the due amount.
3. The defendant shall pay the above amount to the plaintiff
within one month from today, failing which the plaintiff
shall be entitled for pending and future interest over the
due amount of Rs.5,25,000/ @ 12 % p.a. from the date
of filing of suit till actual realization.
Decree shall be drawn up accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date : 29.1.2020 Gr. Bombay (CR 03)
Dictated on : 29.1.2020
Transcribed on : 29.1.2020
Draft given to HHJ on 29.1.2020
Signed on : 30.1.2020.
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7 (J- Comm.Suit 86/19)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 30.1.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 29.1.2020
Judgment/ order signed by P.O on 30.1.2020
Judgment/ order uploaded on 30.1.2020
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