Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in
Suit No.1829of 2018 1
MHCC010077412018
Presented on : 28-06-2018
Registered on : 23-07-2018
Decided on : 11-10-2023
Duration : 5 Yr, 3 M, 13 D.
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.1829 OF 2018.
Exh.09.
Neville Nadir Mistry ]
parsi, Indian Inhabitant, ]
aged about 54 years, Occ.: Service, ]
residing at Flat No.1, Ground floor, ]
20, Mahaluxmivala Building, ]
Sleater Road, Grant Road, ]
Mumbai – 400 007. ]....Plaintiff.
Vs.
Smt. Farzana Behram Contractor ]
Muslim, Indian Inhabitant, ]
aged about 62 years, Occ.: Service, ]
residing at 16/C, Lands End, ]
Dungrsee Road, Malbar Hill, ]
Mumbai – 400 026, and having office ]
at Afternoon House, 6, Nanabhai Lane, ]
Fort, Mumbai – 400 001. ]...Defendants.
Appearance:
Adv. Mehendra Mohalkar for plaintiff.
Defendant – Exparte.
SUIT FOR RECOVERY OF MONEY
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Coram : Shri. U.C.Deshmukh.
Judge.
CR No. : 59.
Date :11th October, 2023.
ORAL JUDGMENT
This is suit for recovery for compensation of Rs.
1,00,00,000/- for false prosecuting the plaintiff.
Brief facts of the case are as under :
2. The plaintiff contends that presently he is working as
Commercial Manager with company M/s. Courier Publications Pvt. Ltd
situated at Janmabhoomi Bhavan, Janmabhoomi Marg, Fort. Prior to
that he w
as working in the company namely M/s. Courier Publication
Pvt Ltd as a subordinate to the defendant, wherein the defendant was a
Chief Executive Officer of said Company. The said company was
published daily news paper namely The Afternoon Dispatch and
Courier. The plaintiff specifically contends that he joined the company
on 21st February, 1987 as a clerk and worked till 22nd January, 2000. He
was forced to resign by the defendant from the post of Senior Account
Manager. The plaintiff was working under supervision of the defendant.
The relation in between the plaintiff and the defendant were not cordial
relation.
3. The plaintiff specifically contends in the year 1999, the
company sustained huge loss and the defendant fastened the liability of
the loss sustained by the Company upon the plaintiff. The defendant
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acted in collusion with one Mr. Pushpak Shah. The defendant falsely
alleged that the plaintiff committed fraud and misappropriated of fund
of the Company and thereby he filed criminal case against the plaintiff,
which caused harassment and mental torture to the plaintiff.
Consequently, the plaintiff resigned from the Company from 22.01.2001
from his post as Senior Account Manager.
4. The plaintiff further states that he had informed his
sufferance to the police station. Due to false FIR, the plaintiff suffered a
lot of mental and economical loss. The defendant made allegations
against the plaintiff that the plaintiff misappropriated an amount of Rs.
41,07,000/-. In-spite of repeated demand by investigation officer, the
defendant did not supply documents on which he relied upon while
filing the false complaint against the plaintiff. Consequently,
investigating officer submitted summary report before Ld. Metropolitan
Magistrate, 19th Court, Mumbai. The case was transferred to the 47th
Court Esplanade Court. Ld. Magistrate passed order on 07.07.2017 and
accepted ‘C’ Summary report filed by the police.
5. It is further specific case of the plaintiff that meantime he
had moved an application before Labour Commission that where he got
the success to recover gratuity from the Company. Wherein the
defendant also failed to appear and resist the application of the plaintiff.
The plaintiff incurred expenses of Rs.2,00,000/- to move Anticipatory
Bail Application No.244 of 2001. Therefore, on 15.01.2018 the plaintiff
issued notice to the defendant to tender in conditional apology for
malicious prosecution. However, the defendant willfully failed and
evaded to serve the notice. Therefore, the defendant is liable to pay an
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amount of Rs.1,00,00,000/- as a compensation to the plaintiff. Hence,
this suit.
6. Though the defendant appeared, but failed to file written
statement. Hence, no written statement order is passed on 26.10.2018.
7. Thereafter, this Court sue-moto issued notice to the
defendant on 27.09.2022 which is served as per Exh.5. Thereafter, also
the defendant failed to appear.
8. As suit is proceeded without written statement, the plaintiff
filed his affidavit in lieu of examination in chief at Exh.6 and documents
along with list Exh.7 which are taken on record. The defendant also
failed to cross examine the witness of the plaintiff and reply to the
documents. The plaintiff closed his evidence vide pursis vide Exh. 8.
9. Considering the facts, evidence and law applicable to the case,
following points arise for determination.:
Sr. No. POINTS FINDINGS
1.
Whether the plaintiff is
entitled to recover an amount
of Rs.1,00,00,000/- at the
rate of 9.00% p.a. ?
....Partly Yes....
with interest @ 6%pa.
2.
Whether the suit is within the
limitation. ...Yes....
3. What order and decree? Suit is decreed.
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:REASON:
As to point No. 1 to 2.:
10. Though notice was issued by the Court suo moto on
27.09.2022, which is served as per Exh. 5, the defendant failed to
appear. However, there was no need to pass exparte order against the
defendant as suit was already proceeded without written statement of
the defendant. At the out set, it apt to mention that the pleadings and
evidence of the plaintiff remained unchallenged. Hence, at the thresh
there is no reason to disbelieve the same at threash-hold. However, it is
necessary to see whether evidence adduced by the plaintiff is sufficient
to decree the suit.
11. The plaintiff examined himself at Exh.6 wherein he
reaffirmed the facts narrated in the plaint. In support of his contention
the plaintiff has filed certified copy of his resignation letter dated
22.01.2000. He also filed copy of FIR No.15 of 2000 dated 17.02.2000
which was lodged by the defendant wherein the defendant has made
allegation against the plaintiff that the plaintiff was responsible for
company’s loss. He also alleged that the plaintiff was responsible for
removal of the material from the godown of the company which is not
received by the concerned recipient. The defendant also lodged the
complaint against the plaintiff that he has misappropriated the amount
of Rs.25.02 Lakhs. Consequently, on the report of the defendant, the
aforesaid FIR was registered against the plaintiff.
12. The plaintiff has also filed the certified copy of order of Ld.
Metropolitan Magistrate dated 07th July, 2017 in case No.
20/SUM/2005. The Ld. Metropolitan Magistrate has observed that the
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investigating officer issued notice to complainant i.e. defendant herein
to produce documents. However, defendant failed to produce
documents. Therefore, there is no sufficient evidence to proceed against
the plaintiff. Consequently, accepted “C” Summary Report and
proceeding was closed. Said order itself speaks about substance in the
submission of the plaintiff that the defendant in spite of repeated
demand by the investigating officer, failed to produce concerned
documents to support of FIR.
13. The plaintiff also succeeded to show that he had issued
notice to the defendant to tender apology for filing false complaint
against him. The defendant failed to file written statement. Hence, it is
brought on record that the defendant failed to reply the notice of the
plaintiff. The suit is instituted on 28.01.2018 which is within the
limitation from the date of the order of Ld. Metropolitan Magistrate
accepting “C” Summary Report. Thus, the plaintiff succeeded to show
that defendant had filed false complaint against him and also failed to
produce documents in support of complaint. Now question arise what
amount would be just and proper to compensate the plaintiff.
14. The plaintiff claimed an amount of Rs. 1,00,00,000/- as
compensation amount. However, the plaintiff except contents of his
expenses of Rs. 2,00,000/- for Anticipatory Bail, nothing has been
produced on record to justify his case. The plaintiff claims that he was
senior accountant in the company. It was alleged that the plaintiff
misappropriated the amount of Rs.41,07,000/-. The plaintiff also failed
to bring on record what was his position in the society and to what
extent his moral was degraded which would justify claim amount of
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Rs.1,00,00,000/-. However, the fact that he was senior accountant in
the company and he had dignity as a human being. Considering the
allegations levelled against the plaintiff, and work he did in the
company, it is just and proper to direct the defendant to pay an amount
of Rs. 10,00,000/- as a compensation with interest at the rate of 6% p.a.
from the date of the suit till its reliasation. Accordingly, point Nos. 1 &
2 are answered.
15. The suit is going to partly decreed. In such circumstances,
it would be just and proper that the suit is decreed with cost. The
defendant is failed to file written statement though he appeared.
Accordingly, in answer to point No. 3, following order is passed :
ORDER
1. Suit No. 1829 of 2018 is partly decreed with cost.
2. The Defendants is ordered to pay an amount of
Rs.10,00,000/- (Rs.Ten Lakhs Only) as a
compensation with interest at the rate of 6.00% p.a.
from the date of the suit till its realization.
3. The Defendant is directed to pay an amount of
decree within two months from the date of this order
to the Plaintiff.
4. Decree be drawn up accordingly.
6. Suit No. 1829 of 2018 is disposed off accordingly.
(Dictated and Pronounced in Open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:11.10.2023 Greater Bombay (CR 59).
Declared on : 11.10.2023
Dictated on : 11.10.2023
Transcribed on : 30.10.2023
Checked on : 30.10.2023
Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
8.11.2023 at 3.40 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 11.10.2023
Order signed by P.O. on 06.11.2023
order uploaded on 08.11.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.08.2023 at 5.30 -p.m. Mrs. P.R.Wagh
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Suit No.1829of 2018 9
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.07.2023
Order signed by P.O. on 17.08.2023
order uploaded on 21.08.2023
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