Final Order 2

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.367/2021 1 Judgement
MHCC010075722019
Presented on : 17072019
Registered on: 16092019
Decided on : 08022024
Duration : YY: MM: DD
04 : 04: 22
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 367 Of 2021
Exhibit24
Mr. Ghisulal Hemchand Jain
Karta of M/s. Lehari Hemchand (HUF),
Age:70 years, Occ.: Business,
Residing at: Flat No.1004, A wing,
Shreepati Arket, Navakal road, Pimpal wadi,
Near C. P. Tank, Mumbai 400 004. ... Plaintiff.
V/s.
1. Silver Arch Builders and Promoters,
A Partnership Firm duly registered with the
registers of firm bearing No.BA85228,
Having its place of business at Sai Kirti Co.
Op. Hsg. Soc. Ltd, Anand Patil Road, Dadar,
Mumbai 400 028.
2. Mrs. Usha Manohar Shah,
Age: Not Known, Adult, Occ.: Business,
Residing at : Sadanand Apartment, 7 th
Floor, N. M. Kale Raod, Agar Bazaar,
Mumbai 400 028.
3. Mr. Haresh Navanitari Mehta,
Age: Not Known, Adult, Occ.: Business,
Residing At: 601/602, New Shree Sagar,
Dongarshi Road, Mumbai400 006.
4. Mrs. Mayuri Haresh Mehta,
Age: Not Known, Adult, Occ.: Business,
Residing At: 601/602, New Shree Sagar,
Dongarshi Road, Mumbai400 006. ... Defendants.
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Com. Suit No.367/2021 2 Judgement
CORAM : HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 08th DAY OF FEBRUARY 2024
: Appearances:
Ld. Advocate Sagar Gala for Plaintiff.
Ld. Advocate Rashmi More for defendant Nos.1, 3 and 4.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of sum of
Rs.43,43,296/ along with further interest on the principal sum of
Rs.23,00,000/ @ 12 % per annum from the date of filing of the suit till
its full realization.
Herein it is to be seen that, initially the suit was registered as
Summary Suit No. 913 of 2019, but later on it was converted into
commercial Summary Suit as per physical verification certificate dated
03.04.2021 issued by the then HHJ.
2. Briefly stated facts of the case are as under:
The plaintiff is the Karta of M/s. Lehari Hemchand (HUF) and is
in the business of making jewellery. The defendant no.1 is a partnership
firm engaged in the business of construction and redevelopment of real
estate and such other like businesses. Defendant Nos.2 to 4 are the
partners of defendant No.1 and are responsible and liable, jointly and
severally for the acts and deeds done by any or all of them.
3. Defendants have business exigencies and approached the
plaintiff to lend money as friendly loan as defendants were in need of
money for some urgent work and made the plaintiff advance money
and part with principal amount of Rs.23,00,000/. At that time,
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Com. Suit No.367/2021 3 Judgement
defendants made representation that they shall returned said amount
within a short terms alongwith interest @ 12% per annum payable
quarterly in favour of the plaintiff. Believing said representation, the
plaintiff part with the sum of Rs.23 Lakhs by issuing cheque bearing
no.804123 dated 10.04.2010 of Rs. 23 Lakhs drawn of Bank of India,
Bullion Exchange Mumbai. Said cheque was duly credited in the
account of defendant no.1 on 15.04.2010. Defendants have also issued
receipts dated 13.04.2010 acknowledging the payment of Rs.23 Lakhs.
4. It is submitted that the plaintiff has forwarded letter dated
27.07.2017 calling upon the defendants to repay the loan. Defendants
have duly received said notice, but failed to reply the same.
5. Defendant no. 1 Firm has furnished confirmation of account
from the year 2010 till 2017 duly endorsed and acknowledging the
above mentioned facts and figures under their seal and signatures. In
the last statement furnished by defendant firm for the year 2017, they
have issued part payment of Rs.20,908/ by cheque no.368596 dated
12.04.2017 and Rs. 25,000/ by cheque no.368610 dated 17.04.2017
drawn on Bank of Baroda. The opening balance as on 01.04.2017 was
Rs.31,20,908/.
6. As per the statement of account maintained by the plaintiff, the
balance amount of Rs.43,43,296/ is due and payable and outstanding
from the defendant’s receivable by the plaintiff up to 31.03.2019. The
plaintiff made several requests to the defendants to repay the same.
However, defendants failed and neglected to pay the same. Hence, the
plaintiff had issued notice dated 10.11.2018, thereby called upon
defendants to repay the loan and interest. Despite of receiving notices,
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Com. Suit No.367/2021 4 Judgement
defendants neither replied nor compiled. Hence, the suit.
7. The plaintiff has taken out Summons for Judgment No.54 of
2020. Defendants No.1, 3 and 4 granted leave to defend subject to
depositing sum of Rs.31,20,908/ within period of ten weeks from the
date of order i.e., 15.12.2021. Defendants further directed to file
written statement within the period of 30 days from the date of deposit.
However, defendants failed to comply with the order dated 15.12.2021.
Hence, vide order dated 16.03.2022 my Ld. PredecessorinCourt
proceeded suit Exparte.
8. The plaintiff has filed affidavit of examination in chief of PW1
Ghisulal Hemchand Jain at Exh.8. The plaintiff relied on documents
filed along with list Exh.9.
9. Heard, the Ld. Advocate for the plaintiff. He also filed written
notes of argument (Exh.23). Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.43,43,296/
along with further interest on the
principal sum of Rs.23,00,000/ @
12 % per annum from the date of
filing of the suit till its full
realization as claimed?
Partly Yes.
2. What Order and Decree? As per final order.
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Com. Suit No.367/2021 5 Judgement
REASONS
As to point no.1:
11. PW1 Ghisulal Jain deposed as per the contents of the plaint
averments; hence I do not want to reproduce the same to avoid the
repetition. The plaintiff has filed Copy of Certificate issued by Registrar
of Firm dated 24.10.2018 (Exh.10); Original Bank Passbook (Exh.11);
Original Receipts dated 13.04.2010 (Exh.12); Original Letter dated
27.10.2017 along with RPAD (Exh.13); Original Copies of Confirmation
of Account from the year 2010 till 2017 (Exh.14 Colly); Office Copy of
Notice Dated 10.11.2018 (Exh.15); Photocopy of Statement of Income
Tax Liability (Exh.16); Photocopy Statement of Accounts (Exh.17);
Photocopy of Consent Terms dated 21.07.2022 (Exh.18); Original
Letter dated 21.07.2022 (Exh.19); Copy of Complaint u/sec.138 of N. I.
Act (Exh.20) and Copy of Three Cheques along with Bank return Memo
(Exh.21 Colly).
12. Upon perusal of documents it reveals that the plaintiff being
Karta of M/s. Lehari Hemchand (HUF) had given loan of Rs. 23 Lakhs
as the defendants required the same for their business purposes.
However, defendants failed to regularly repay the said amount,
therefore, the plaintiff had issued notice dated 10.11.2018 and
demanded the said amount. The plaintiff had filed the copy of original
receipt (Exh.12) and the copy of notice at Exh.13. Herein it is to be seen
that the defendants have admitted their liability, thus, have executed
consent terms. Photocopy of the same is filed on record, it is at Exh.18.
But later on, defendants have turned up and did not enter into the
compromise. It is submitted that defendants have paid part payment of
Rs.20,908/ and 25,000/ vide cheque dated 12.04.2017 and
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Com. Suit No.367/2021 6 Judgement
17.04.2017. The plaintiff has also filed Original Copy of three cheques
issued by the defendants in favour of the plaintiff on 20.12.2022,
20.01.2023 and 20.02.2023of Rs. 4,40,000/ each. As the said cheques
were dishonored upon presentation, hence, the plaintiff has filed
complaint under section 138 of the N. I. Act.
13. Herein it is further to be seen that vide order dated 15.12.2021
leave to defend is granted to defendants upon depositing a sum of
Rs.31,20,908/ within ten weeks from the date of order. However,
defendants failed to deposit the said amount. Thus, in view of
provisions of Order XXXVII Rule 6(b) of the Code of Civil Procedure, the
plaintiff is entitled for Decree. Hence, in view of my above discussion
and considering pleadings and evidence, the plaintiff duly proved that
he is entitled for recovery of principal amount of Rs.23,00,000/ from
defendants. So far as, rate of interest is concerned, I am of the view that
looking to the nature of business transaction and current bank rate of
interest, if the defendant is directed to pay the interest @ 9% p.a., then
it will subserve the purpose. Thus, in view of my above discussion, I
answer to point No.1 in partly affirmative.
As to Point No.2.
14. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.367 of 2021 is partly decreed with Costs.
2. Defendants do pay, Jointly and Severally the amount of
Rs.23,00,000/ with further interest @ 9% per annum from the due
date till its full realization.
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Com. Suit No.367/2021 7 Judgement
3. Decree be drawn up accordingly.
4. Commercial Suit No.367 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.08.02.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 08.02.2024
Directly typed on : 08.02.2024
Signed on : 08.02.2024
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Com. Suit No.367/2021 8 Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 09.02.2024 NAME OF STENOGRAPHER
TIME: 02.30 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
08.02.2024
JUDGMENT/ORDER signed by
P.O. on
08.02.2024
JUDGEMENT/ORDER uploaded on 09.02.2024
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