Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 747/21. 1 Ex-parte Judgment (Exh.12).
MHCC010077482018
Presented on : 28-06-2018
Registered on : 11-10-2018
Decided on : 10-11-2021
Duration : 3 years, 4 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 747 OF 2021
Exh.12.
Shri Lalita Jewellers & Co. )
A firm carrying on their business at )
A/1803, Shreepati Castle, 11th Lane )
Khetwadi, Girgaon, Mumbai 400 004 )...Plaintiff
Versus
1. Jaipur Jewels & Gems, a firm )
2. Smt. Shanta W/o Kiran Bafna )
3. Raj s/o Kiran Bafna )
4. Harsh s/o Kiran Bafna )
Nos.2 to 4 are the Partners of )
M/s Jaipur Jewels & Gems, and )
Residing and carrying on their )
Business at “Kiran”, 465/D, )
Ghokahle Cross Road, Neat to )
Mafatlal Bungalow, )
Pune – 411 016, Maharashtra )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 10th NOVEMBER, 2021.
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Comm.Suit No. 747/21. 2 Ex-parte Judgment (Exh.12).
Mr. Sohanraj Chopda, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a partnership firm registered under
the Indian Partnership Act, 1932 carrying on business at above
mentioned address. The defendant no.1 is also a partnership firm and
defendants no.2 to 4 are its partners. The plaintiff and the defendants
had business dealings with each other for last two years prior to filing of
the suit. The defendants had issued eight cheques drawn on HDFC
Bank, Shankar Peth, Pune, of Rs.26,80,000/ in total during
01/09/2017 to 25/10/2017 as described in para 2 of the plaint. When
these cheques were presented for realization to the plaintiff's bank, they
were dishonoured by the bank with remark 'No Sufficient Balance' on
01/12/2017. Therefore, the plaintiff's advocate issued letter dated
12/12/2017 as per Section 138 of the Negotiable Instruments Act. The
plaintiff could not file the proceeding under Section 138 of the N.I.Act,
he decided to file the civil suit for recovery of the cheque amount.
Therefore, the plaintiff's advocate again sent letter dated 08/02/2018 to
the defendants for making payment of the due amount. Then,
defendant no.4 sent SMS to the plaintiff after receipt of the second
notice stating that he is in the hospital, after discharge from the said
hospital he will make the payment without fail. As the defendants failed
and neglected to pay the cheque amount, the plaintiff filed the present
suit with prayer for recovery of Rs.27,00,000/ (including principal
amount of Rs.26,80,000/ and interest at the rate of 18% p.a. from
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Comm.Suit No. 747/21. 3 Ex-parte Judgment (Exh.12).
01/12/2017 till the date of suit of Rs.20,000/). He also prayed for
further interest at the rate of 18% p.a. on principal amount of
Rs.26,80,000/ from the date of filing of the suit till realization with
costs.
3. The defendants were duly served with writ of summons as
per affidavit of service (Exh.5), but they failed to appear and oppose the
claim of the plaintiff. Therefore, my learned predecessor passed the ex
parte order against them on 16/01/2020
4. PW 1 Lalita deposed on evidence affidavit (Exh.7) and
proved documents filed with list of documents (Exh.6). Proved
documents are at Exh.8A to 11. The plaintiff had already filed evidence
close pursis (Exh.8) before exhibition of documents. Heard learned
counsel Shri Sohanraj Chopda for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.27,00,000/ (including principal
amount of Rs.26,80,000/ and interest
at the rate of 18% p.a. from
01/12/2017 till the date of suit of
Rs.20,000/ ) ?
In the Affirmative.
2. Whether the plaintiff proves that he is
entitled to recover interest on the
principal amount of Rs.26,80,000/
from the date of the suit till
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Comm.Suit No. 747/21. 4 Ex-parte Judgment (Exh.12).
realization ? If yes, at what rate of
interest ? In the Affirmative @
18% p.a.
3. What order as to costs ? As per final order.
4. What order and decree ? Suit is decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
6. PW 1 Lalita has deposed that the defendant had given eight
cheques (Exh.8A colly.) as detailed in para 2 of the plaint aggregating
to Rs.26,80,000/ for the valuable consideration and the same were
dishonoured by the bank with a remark 'No Sufficient Balance'. She
further stated about letter dated 12/12/2017 (Exh.9) and letter dated
08/02/2018 (Exh.10). She further proved SMS received from
defendant no.4 as Exh.11.
7. On perusal of the cheques and endorsement on dishonour
memos dated 06/02/2018, it appears that the outdated cheques were
presented for honouring to the bank. Therefore, endorsement
'Instrument Outdated/Stale' is made in dishonour memos of seven
cheques excluding dishonour memo of cheque no. 000116 (Exh.8A
colly.). Dishonour memos falsifies to the pleading and evidence of the
plaintiff with regard to the reason of dishonour of the cheques . It is
pertinent to note that cheque no. 000075, 000116 and 000123 are
issued on 01/09/2017, 10/10/2017 and 18/10/2017 respectively.
Remaining five cheques are issued on 25/10/2017. Dishonour memos
are issued on 06/02/2018. Date of presentation of the cheques is not
clarified by the plaintiff either in the plaint or in the evidence. Date of
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Comm.Suit No. 747/21. 5 Ex-parte Judgment (Exh.12).
presentation is also not mentioned in dishonour memos. Proviso (a) to
section 138 of the N.I.Act stipulates condition of presentation of the
cheque to the bank within a period of three months from the date on
which it is drawn or within the period of its validity, whichever is earlier
for constituting the offence. Therefore, the plaintiff should have
clarified the aspect of validity of the cheques for filing a suit on the basis
of the same.
8. Now, the court is required to address the question of
validity of the cheques before commenting upon maintainability of the
suit. Cause of action to initiate civil proceedings arises from the fixed
time for payment of the amount in the cheque / bill of exchange as per
Article 31 in the Schedule to the Limitation Act, 1963. Therefore, above
said provision of the N.I.Act does not come in the way of filing of the
suit on the basis of these cheques. Hence, present civil suit is
maintainable and the plaintiff is entitled to recover the cheque amount
with interest. The plaintiff has proved his claim with the help of
documentary evidence.
9. So far as interest to be awarded on principal amount is
concerned, section 80 of the Negotiable Instruments Act, 1881 provides
that if no interest rate is specified, interest at the rate of 18% p.a. may
be granted. Considering this provision of law, interest claimed by the
plaintiff can be granted. Costs of the suit is liable to be imposed on the
defendants. In the light of above discussion, I record my findings as to
points no.1 and 2 in the affirmative with interest rate as discussed
above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 747/2021 is decreed.
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Comm.Suit No. 747/21. 6 Ex-parte Judgment (Exh.12).
2. The defendants are directed to pay amount of
Rs.27,00,000/ ( Rupees Twentyseven Lakhs Only) to the
plaintiff within three months from the date of decree.
3. The defendants are directed to pay interest @ 18% p.a. on
the principal amount of Rs.26,80,000/ to the plaintiff from
the date of the suit till the date of realization.
4. The defendants are jointly and severally liable to pay the
decretal amount to the plaintiff.
5. The defendants shall bear the costs of the suit.
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 10/11/2021. Mumbai.
1. Dictated online on : 10/11/2021.
2. Signed on : 10/11/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/11/2021. 5.00 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 10/11/2021.
Judgment/Order signed by P.O. on 10/11/2021.
Judgment/Order uploaded on 10/11/2021.
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