Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :28.09.2021
Registered On :16.09.2021
Decided on :03.01.2022
Duration :Y-00/M-03/D-06
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 874 OF 2021
Exhibit- 07
CNR NO.- MHCC01-007708-2021
Vikram Balkishin Sahjwani
Adult, Indian Inhabitant of Bombay,
aged 63 years,
residing at 51, Monalisa Building,
Bomanji Petit Road, Off Warden Road,
Mumbai- 400 036. ... Plaintiff
V/s.
1. Tushar Mehta,
Adult, Indian Inhabitant of Bombay
age and full name not know, carrying on
business in the name and style of
Mehta Surgical, a Proprietory Concern as its
Sole Proprietor at 28 ,
Mehta & Vora Chamber, 2nd Floor,
Office No. 41/42, Babu Ganu Road, Mumbai-
400 002 and at 601/502,
Panchvati Building, Tilak Vidyalaya Marg,
Vile Parle(East), Mumbai- 400 057 and at 202,
Pantagon, 2nd Floor, Western Express Highway,
Near Bisleri Factory, Andheri (East),
Defendants
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Mumbai-400 099.
2. Yogesh Mehta,
Adult, Indian Inhabitant of Bombay,
age and full name not known,
carrying on business in the name and style of
Medicare Enterprise, a Proprietory Concern as
its Sole Proprietor at 601/502,
Panchvati Building, Tilak Vidyalaya Marg,
Vile Parle(East), Mumbai-400 057 and at 202,
Pantagon, 2nd Floor, Western Express Highway,
Near Bisleri Factory, Andheri (East),
Mumbai-400 099.
3. Geeta T. Mehta
Adult, Indian Inhabitant of Bombay,
age and full name not known,
Residing at 601/502,
Panchvati Building, Tilak Vidyalaya Marg,
Vile Parle(East), Mumbai-400 057
Appearance:-
Ms. Kavita Lalwani Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 03.01.2022
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JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under order
XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is doing the business from the address narrated in
the suit plaint. Defendant no.1 is carrying on the business in the name
and style of Mehta Surgical , Proprietary Concern. Defendant no.2 is
carrying on the business in the name and style of Medicare Enterprise, A
proprietary concern, Defendant no.3 is carrying on the business at the
address given in the suit plaint. The defendant no.1 on dtd.1.5.2018 for
valuable consideration of Rs.12,00,000/- received from plaintiff, drew a
bill of exchange directing thereby, defendant no.2 to pay to the plaintiff
or Order at Mumbai a sum of Rs.12,00,000/- on demand. Defendant
no.3 has signed the bills of exchange as drawee in case of need. Said
bill of exchange was accepted and delivered by defendant no.2 to the
plaintiff on the same day. Accordingly, the defendants executed the bills
of exchange in favour of plaintiff. The amount of Rs.12,00,000/- was
advanced to the defendants by cheque dtd.1.5.2018 bearing No.000025
of Rs.12,00,000/- drawn on HDFC Bank, Bhulabhai Desai Road,
Mumbai. The defendant no.1 paid discount by cheque on dtd. 1.5.2018
of Rs.2,16,000/- and have deducted TDS of Rs.21,600/-. The
defendants made part payment by cheques. The amount of
Rs.2,00,000/- remained to be paid. The plaintiff thereafter presented
demand bill of exchange to the defendant no.2 for payment of balance
sum of Rs.2,00,000/- and then to defendant no.3. The defendants
dishonored the demand of bill of exchange by non payment. The bill of
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exchange has been dishonored by defendant no.1 also. Therefore, the
defendants are jointly and severally liable to pay the balance sum of
Rs.2,00,000/- alongwith interest at the rate of 18% p.a. The plaintiff
issued letter/notice through advocate on 6.9.2021 to the defendants
calling upon them to pay the outstanding amount alongwith accrued
interest but the defendants failed to comply with said requisition. The
plaintiff averred that the defendants are liable jointly and severally to
pay the outstanding amount of Rs.2,85,000/- as per the Memo of
Particulars.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.2,85,000/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a on
the principal amount of Rs.2,00,000/- from the date of suit till its
realization. Hence, this suit.
4. The suit summons were duly served on the defendant nos.
1 to 3. The defendants no.1 to 3 failed to appear though served with
the suit summons. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment against
defendant nos. 1 to 3.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendant nos. 1 to 3?
Amount of
Rs.2,85,000/- with
interest
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A] If yes, what would be the rate
of interest?
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 the list of documents:
Sr.
No.
Description of documents Exhibits
1 Demand Bill of Exchange dated
01.05.2018 of Rs.12,00,000/-
Exh. 7/1
2 Copy of Plaintiff’s Advocate’s letter
dated 01-05-2018 of defendant
addressed to the plaintiff.
Exh. 7/2
3 Copy of Plaintiff’s Advocate’s letter
dated 08-11-2019 of defendant
addressed to plaintiff alongwith
cheque No. 881861 of
Rs.2,00,000/-
Exh. 7/3
4. Copy of Plaintiff’s Advocate’s letter
dated 06-09-2021 alongwith
acknowledgment
Exh. 7/4
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.12,00,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.1 to 3
to pay to the plaintiff or order a sum of Rs.12,00,000/- on demand and
said bill of exchange has been accepted and delivered by the defendant
no.1 to 3 to the plaintiff. Further, it reveals that part payment is made
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and the amount of Rs.2,00,000/- remained to be paid. It further revels
from the record that said transaction took place on dtd.1.5.2018, the
notice/letter of demand was issued to the defendants on dtd. 6.9.2021
and the suit is filed on 28.09.2021. As such, the plaintiff’s claim in the
suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has given amount of Rs.12,00,000/- to
the defendants on bill of exchange. The defendants repaid the amount
and the remaining dues against the defendants are Rs.2,00,000/-. The
plaintiff is claiming Rs.2,85,000/- which is the amount calculated with
interest at the rate of 18% p.m till the date of filing of the suit. Said
amount is not repaid by any of the defendants. Therefore, defendant
nos. 1 to 3 are liable jointly and severally to pay the outstanding
amount of Rs.2,85,000/- to the plaintiff. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.2,85,000/- from the defendants jointly and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.2,85,000/- and said amount is calculated alongwith
with interest at the rate of 18% p.m till the filing of the suit. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 18% per annum
on the principal amount. As per section 34 of the Code of Civil
Procedure the rate of interest may exceed 6% per annum, if the
transaction is commercial and there is no contract pertaining to the
same between the parties. In the present case the transaction is a
commercial one and there is contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
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defendant is liable to pay the interest at the rate of 18% p.a. Therefore,
I hold, the rate of interest at the rate of 18% per annum would be just
and proper to be awarded on the principal sum of Rs.2,00,000/- .
Hence, point no.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.2,85,000/- from the defendant
nos. 1 to 3 jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.2,00,000/- from the date of filing of
the suit till its realization. Plaintiff is also entitled to recover cost of the
suit from the defendant nos. 1 to 3. Hence, in answered to point no.2, I
proceed to pass the following order.
ORDER
1. The defendant nos.1 to 3 shall pay Rs.2,85,000/- (Rs.
Two Lakhs Eighty Five Thousand Only) to the plaintiff
jointly and severally, with interest at the rate of 18%
per annum on the principal sum of Rs.2,00,000/- from
the date of filing of the suit till its realization.
2. The defendant nos. 1 to 3 do pay costs of the suit to
the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :03.01.2022 Gr. Bombay
Dictated on : 3.1.2022
Typed on : 3.1.2022
Signed on : 3.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.01.2022 5.10p .m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
03.01.2022
JUDGMENT/ORDER signed by
P.O.on
03.01.2022
JUDGMENT/ORDER uploaded on 03.01.2022
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