Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 (J- Comm.Suit 49/19)
Received on : 4.6.2019
Registered on : 8.7.2019
Decided on : 30.1.2020
Duration: .. yrs. 07 Months 26 days.
CNR No.MHCC010070502019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO. 49 OF 2019.
RAHULKUMAR RASIKKUMAR JAIN, )
adult, Indian Inhabitant, )
carrying on business as a Sole Proprietor )
in the firm name and style of Aarcot Fabrics )
at and from 4248, Chintamani Bldg, )
1st Floor, Ramwadi, Kalbadevi Road, )
Mumbai 400 002. )...Plaintiff
Versus
1. ARHAM RISTORANTE LLP )
A Partnership Firm having its )
address at Inder Tower, )
Flat No.1002/ 1003, Gokhale Road, )
Prabhadevi, Dadar(E), )
Mumbai 400 028 )
2. KEKIN JETHALAL DEDHIA )
Age not known of Mumbai, adult, )
Indian Inhabitant, carrying on business )
as a Partner in the name and style of Arham )
Ristorante LLP at and from Inder Tower, )
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Flat No.1002/1003, Gokhale Road, )
Prabhadevi, Dadar(E), )
Mumbai 400 028 )
3. MITTAL KIKIN DEDHIA )
Age not known of Mumbai, adult, )
Indian Inhabitant, carrying on business )
as a Partner in the name and style of )
Arham Ristorante LLP at and from )
Inder Tower , Flat No.1002/1003, )
Gokhale Road, Prabhadevi, )
Dadar(E), Mumbai 400 028. )...Defendants
Appearance:
Advs. Mr. Ramsh Jain @ Mr. Bharat Jain for plaintiff.
None for defendant. Suit proceeded exparte.
CORAM : HHJ Shri V.V. Vidwans
(Commercial Court)
C. R. No.03.
DATE : 30.1.2020.
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
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of notice to the defendants, they had failed to turn up before mediation
Centre/ District Legal Services Authority, (DLSA) Mumbai and therefore, a
Nonstarter Report dated 18.4.2019 was received. Thereafter the suit was
instituted.
3. On issuance of writ of summons to the defendants, two
envelopes vide Exhs.'B' and 'D' and original summons Exh.'A' along with
postal acknowledgment Exh.'C' were received as per affidavit of service
dated 23.9.2019 informing that, receipt of R.L.No.1813 has been
acknowledged. While envelopes Exhs.'B' and 'D' have been returned with
endorsement as 'not claimed' with reference to R.L. Nos. 1812 and 1814.
In view of above, as per order dated 4.10.2019, the Suit has proceeded
exparte against the defendants by treating the service of summons as
proper / deemed service.
4. The plaintiff has led documentary as well as oral evidence as
per list vide Exhs.2 and 3 respectively.
5. In the first Case Management Hearing stage, before trial, on
28.1.2020, I had heard Ld. Counsel for the plaintiff on exhibiting the
documents with reference to the evidence affidavit of plaintiff Rasikkumar
Kundanmal Jain and exhibited the documents. Document at Sr.No.1 in the
list being bank statement duly stamped and authenticated by the bank is
marked and exhibited at Exh.5 and document at Sr.No.3 is letter issued by
the plaintiff's advocate dated 22.11.2018 to the defendants, being office
copy of the original and bears signature of the advocate of the plaintiff, is
marked and exhibited at Exh.6. The document at Sr.No.2 being TDS
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Certificate dated 31.3.2016 is photocopy and therefore, marked as Art.X
for identification purpose.
6. I have heard Ld.Counsel for the plaintiff in the Suit. He
submitted that, as directed by the court on 23.1.2020, along with evidence
affidavit and list of documents, he has submitted the Statement of Truth
vide Exh.4 on record to comply with the procedural requirement as per
provisions of Commercial Courts Act, 2015.
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
defendants i.e. the plaintiff had extended financial help/
assistance to the defendants by way of business loan and
defendants 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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REASONS
AS TO POINTS NO. 1 AND 2 :
8. Ld. Counsel for the plaintiff referred to the documents and
oral evidence on record and submitted that, the plaintiff is a businessman
and sole proprietor of the concern Aarcot Fabrics, as per description given
in the cause title of the Suit. The defendant no.1 is a Firm – Arham
Ristorante LLP and defendants no.2 and 3 are its partners.
9. It is submitted by the plaintiff that, the defendants had
approached the plaintiff with a request to extend financial help by of
business loan as the plaintiff and defendants were known to each other.
Hence, the plaintiff had accepted the request and extended financial
assistance by way of cheques issued to the defendants from time to time
aggregating to Rs.40,00,000/ during the period from July 2014 to
December 2014 drawn on Kotak Mahindra Bank, Kalbadevi Branch,
Mumbai. The said cheques have been duly encashed by the defendants as
per bank statement filed on record vide Exh.A, along with the plaint. Ld.
Counsel for the plaintiff submitted that, the defendants had agreed to
repay the loan amount along with interest @12% p.a. The defendants
have lastly issued TDS Certificate on 31.3.2016 in favour of the plaintiff.
The said TDS Certificate issued by the defendants as per provisions of
Sec.203 of Income Tax Act is at Exh.D filed with the plaint, confirming and
admitting the above mentioned transaction in writing.
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10. Ld. Counsel for the plaintiff lastly submitted that the
defendants had expressed that they were facing financial difficulty and
asked to wait and assured to pay the loan amount along with interest. But
there was no further compliance on the part of the defendants. Therefore,
the plaintiff was compelled to issue a letter through his advocate to the
defendants on 22.11.2018, making demand for repayment of the loan
amount and accrued interest, but in vain. Hence, this Suit.
11. Ld. Counsel for the plaintiff has relied upon averments made
in the plaint in paragraphs 5 to 7 and also evidence affidavit of the plaintiff
read with bank statement at Exh.5 and plaintiff's letter dated 22.11.2018
Exh.6, and submitted that, the plaintiff has proved the loan transaction in
the Suit and the fact that, the plaintiff had provided financial assistance to
the defendants by way of business loan in the sum of Rs.40,00,000/.
Therefore, the plaintiff has discharged the burden in the Suit and proved
the suit claim. Hence, the plaintiff is entitled for exparte decree against the
defendants.
12. After considering pleadings of the plaintiff in the plaint and
documentary as well as oral evidence on record, I find that, the plaintiff's
claim in the Suit is supported by the Statement of Truth vide Exh.4 and
documents on record. It is corroborated by evidence affidavit of the
plaintiff and therefore, the plaintiff is entitled for recovery of Rs.40 Lacs
plus accrued interest @ 12 % p.a., total mount of Rs.53,79,506.84 ps, as
prayed in the Suit. Hence, points no.1 and 2 are answered in the
affirmative with following order :
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ORDER
1. Suit decreed with costs.
2. The defendants no.1 to 3 shall jointly and severally pay
to the plaintiff a sum of Rs.53,79,506. 84 paise, including
principal sum and accrued interest on the due amount.
3. The defendants shall pay the above amount to the
plaintiff within one month from today, failing which the
plaintiff shall be entitled to recover the decretal sum
along with pending and future interest @ 12 % p.a. from
the date of filing of the suit till actual realization by
taking assistance from the Court.
Decree shall be drawn up accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date : 30.1.2020 Gr. Bombay (CR 03)
Dictated on : 30.1.2020
Transcribed on : 31.1.2020
Draft given to HHJ on 31.1.2020
Signed on : 1.2.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 1.2.2020
(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 30.1.2020
Judgment/ order signed by P.O on 1.2.2020
Judgment/ order uploaded on 1.2.2020
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