Final Order 1

Order Details: Ex-parte Judgement
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MHCC010079182019
Presented on : 29072019
Registered on : 22112019
Decided on : 16022021
Duration : Y01 M06 D18
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 202 OF 2019
(CNR No.MHCC010079182019)
M/s. Inventys Research Company Private ]
Limited, A Private Limited Company incorporated]
under Companies Act 1956,having its registered ]
office at D514,Kanakia Zillion, BKC Annex, ]
Mumbai400070, ]
Represented by its Authorized ]
Representative, Mr. Kamlesh Surati ]
aged about 48 years ]….Plaintiff
V/s
1. Mr. Akhilesh Yadav ]
The Branch Manager, ]
State Bank of India, ]
Shivsagar Estate Branch, Shivsagar Estate, ]
Worli (South), Dr. Annie Beasant Road, ]
Worli, Mumbai400018. ]
2. M/s. State Bank of India ]
Local Head Office, Bandra Kurla Complex, ]
Mumbai400051 ]...Defendants
APPEARANCE:
Ld. Adv. Pooja Rathod for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 16th February, 2021.
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Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree
directing the defendants to pay Rs. 7,11,307.67 (Rupees Seven Lakhs
Eleven Thousand Three Hundred Seven and Paisa SixtySeven Only)
with interest @ 18% per annum as per particulars of claim and to
realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The plaintiff is maintaining Exchange Earner’s Foreign
Currency Account bearing account No. 31879459340 with the
defendant No. 2 bank. The plaintiff had availed consultancy services of
Mr. Malcolm Rosenthal, situated at 2172, Rainbow Way, Toms River,
N.J. 08755. Mr. Malcolm Rosenthal raised invoices bearing Nos. 2017
053 dated 30.09.2017 for an amount of USD 8,000/(United States
Dollars Eight Thousand) i.e. amount of Rs. 5,66,120/, 2017054 dated
30.09.2017, for an amount of USD 2,500/ i.e. amount of Rs.
1,76,913/ #N000317 dated 02.09.2017 for amount of USD 478.07/
i.e. amount of Rs. 33,830.62/, expenses report for the period
01.09.2017 to 30.09.2017 for amount of USD 649.99/ i.e. approx to
Rs. 46,000/. The total amount payable to Malcolm Rosenthal was USD
11,628.06/ i.e. amount of Rs. 8,22,59.67/.
The plaintiff vide letter dated 01.11.2017 instructed the
defendant No. 2 through defendant No. 1 to make the payment to
Malcolm Rosenthal. The defendants made payment on 06.11.2017.
The plaintiff further instructed to the defendant No. 2 to make the
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payment of 3,000/ USD (United States Dollars Three thousand) i.e.
amount of Rs.2,12,295/(Rupees Two Lakhs Twelve Thousand, Two
Hundred Ninety Five Only) to Malcolm Rosenthal. Vide letter dated
14.11.2017, the payment was made by the defendants to Malcolm
Rosenthal on 22.11.2017. After the payment to Malcolm Rosenthal, the
plaintiff did not instruct to release any payment. It is the allegation of
the plaintiff that on 07.12.2017 without any written instructions, the
defendant No. 2 through defendant No. 1, illegally withdrew an amount
of USD 8,628.06/ (United States Dollars Eight Thousand Six Hundred
TwentyEight and Six Cents Only) i.e. amount of Rs. 6,10,564.67/
(Rupees Six Lakhs Ten Thousand, Five Hundred SixtyFour and Paisa
SixtySeven Only) from the account of the plaintiff. The withdrawal
entry was immediately reversed on 07.12.2017.
3. On 16.02.2018, again without any written instructions or
permission, the defendant No. 2 through defendant No. 1 illegally
withdrew an amount of USD 8,628.06/ i.e. amount of Rs.
6,10,564.67/ from EEFC account. The withdrawal entry was not
reversed by defendant No. 2 bank. It is the case of the plaintiff that he
came to know about illegal and unauthorized withdrawal in May 2018.
The plaintiff wrote a letter dated 16.05.2018 to the defendant No. 1 for
drawing attention to the unauthorized debit made from its account.
The plaintiff was put to loss of Rs.6,10,564.67/. There was no response
to the plaintiff’s letter dated 16.05.2018. The plaintiff, therefore, issued
legal notice through its Advocate letter dated 31.08.2018, called upon
the defendants to pay the amount of Rs. 6,10,564.67/ and further
compensation of amount of Rs. 2,83,060/ for the mental harassment
within 15 days from the notice. The notice was not replied by the
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defendants. The defendants had not repaid the amount. The plaintiff,
therefore, had instituted the present suit.
4. The defendants have failed to appear in the suit. The suit
is proceeded exparte against defendants.
5. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of amount of Rs. 7,11,307.67/
(Rupees Seven Lakhs Eleven Thousand
Three Hundred Seven and Paisa Sixty
Seven Only) with interest @ 18 % p.a.
from filing of suit till its realization?
'In Affirmative'
2 Whether the plaintiff is entitled for
damages and compensation of Rs.
2,83,060/?
‘In the negative’
3 What order and decree? As per final order below.
REASONS
AS TO POINTS NO. 1 & 2 :
6. Heard learned Advocate for the plaintiff.
7. The plaintiff in support of its case had examined Kamlesh
Surati, the authorized signatory of plaintiff company at Exh. 04. The
plaintiff had reiterated all the contentions raised by him in the plaint.
The plaintiff had relied upon following documents (Exh.05):
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Sr. No. Particulars Exh.
1 Original Board Resolution dated 11.06.2018 8
2 Printout of Email dated 02.10.2017 and Email
dated 22.10.2017 alongwith the invoices raised
by Malcolm Rosenthal.
9
3 Office copy of letter dated 01.11.2017
alongwith its annexure.
10
4 Office copy of letter dated 14.11.2017 11
5 Original EEFC account statement. 12
6 Office copy of copy of letter dated 16.05.2018 13
7 Office copy of copy of LegalcumDemand
Notice dated 31.08.2018
14
8 Colour printout of postal slips of the Indian Post 15
9 Any other document with the permission of this
Hon’ble Court.
8. It is the evidence of witness for the plaintiff that plaintiff
company is maintaining Exchange Earner’s Foreign Currency Account
bearing account No. 31879459340 at the branch office situated at State
Bank of India, Shivsagar Estate Branch, Worli (South), Dr. Annie
Beasant Road, Worli, Mumbai400018. The witness for the plaintiff
states that the plaintiff company had availed the consultancy services of
one Mr. Malcolm Rosenthal who is situated at 2172, Rainbow Way,
Toms River, N.J. 08755. He raised the invoices for the amount of Rs.
8,22,589.67/.
9. The plaintiff had produced the copy of invoices raised by
Malcolm Rosenthal. The plaintiff had instructed to defendant No. 2
through defendant No. 1 to make payment on 01.11.2017. The copy of
letter (Exh.10) dated 01.11.2017 is produced in the evidence of
plaintiff. The payment was made by defendants on 06.11.2017.
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Again on 14.11.2017 the plaintiff had instructed to
defendant No. 2 through defendant No. 1 to the payment of 3,000/
USD i.e. Rs. 2,12,295/. The payment was made by the defendants on
22.11.2017. The plaintiff had produced the letter dated 14.11.2017 at
Exh. 11. The transaction with Malcolm Rosenthal was completed. The
defendant Nos. 1 and 2 without any instructions on 07.12.2017 had
withdrawn an amount of USD 8,628.06/ i.e Rs. 6,10,564.67/ from the
account of the plaintiff. The entry was reversed by the defendants. The
plaintiff had produced the copy of statement of account Exh. 12.
Further, on 16.02.2018 without any instructions from the plaintiff
company, the defendants withdrew an amount of USD 8,628.06/ i.e
Rs. 6,10,564.67/ from the account of the plaintiff maintained by the
defendant bank. The withdrawn amount was not reversed back by the
defendant no. 2 through defendant No. 1. The plaintiff company took
the statement of the EEFC account in May 2018 and learnt about the
withdrawals. The plaintiff company accordingly wrote a letter dated
16.05.2018 to defendant No. 1. The plaintiff had produced the said
letter at Exh. 13. The withdrawn amount is not reverted back to the
account of the plaintiff company. Therefore, the plaintiff had issued
notice dated 31.08.2018 (Exh. 14) by SpeedPost to defendants.
10. The defendants were called upon to revert the amount
withdrawn from the account of the plaintiff. The plaintiff had produced
the copy of notice issued to the defendants on 31.08.2018. It is stated
that inspite of notice the defendants did not reply the notice and did not
given back the amount in the account of the plaintiff.
11. The plaintiff had produced the statement of bank account
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maintained by the plaintiff company at Exh. 12 with the defendants.
The statement shows that deduction of amount from the account of the
plaintiff on 16.02.2018. It is the specific contention of the plaintiff that
deduction was without any instructions. Accordingly, the plaintiff
wrote a letter dated 16.05.2018 at Exh. 13 to defendants. The letter
bears the seal of the bank showing the receipt of the said letter. The
letter is not replied by the bank nor the amount was reverted back to
the account of the plaintiff.
The plaintiff, therefore, had issued notice dated 31.08.2018
(Exh. 14). The plaintiff had also filed acknowledgment of the notice
(Exh. 15). The notice issued by the plaintiff is not answered by the
defendants. The plaintiff was issued suit summons by the Court. The
suit summons were served upon the defendants. The defendants were
not appeared in the suit. Therefore, the suit is proceeded exparte
against them.
The defendants have not contested the suit. The
contentions raised by the plaintiff in the plaint have gone unchallenged.
They are not countered by the defendants by appearing in the suit and
raising any contrary contentions to that of plaint.
It needs to be mentioned that evidence of the plaintiff
shows that there is entry in the statement of account showing the
deduction of amount on 16.02.2018. The plaintiff had approached the
defendant bank and had addressed the letter which was received by the
defendants on 16.05.2018. The same was not answered by the
defendants. Further the notice dated 31.08.2018 was not answered by
the defendant bank. Further the suit summons were served upon the
defendants. The defendants have not answered the contentions of the
plaintiff in the plaint. There were three opportunities for the defendant
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bank to explain the deduction of amount from the account of the
plaintiff, maintained in the defendant bank. The plaintiff by his
evidence have shown the deduction of amount of USD 8,628.06/ i.e
Rs. 6,10,564.67/ by the defendants.
12. The defendants had not answered the contentions raised by
the plaintiff in his plaint. The contentions of the plaintiff in the plaint
have gone unchallenged. The plaintiff, therefore, is entitled to recover
the amount which were deducted by the defendants from the account of
the plaintiff.
The plaintiff had also claimed the damages and
compensation for mental harassment and agony caused to the plaintiff.
The plaintiff had not led any evidence to show the exact mental
harassment and agony caused to the plaintiff so as to claim for damages
and compensation. Except the bare words of the plaintiff, there is
nothing to indicate the damages caused to the plaintiff.
13. The plaintiff is entitled for recovery of amount deducted by
the defendants on 16.02.2018, which was unauthorizedly deducted.
The plaintiff is also entitled for recovery of the same with interest.
In facts and circumstances of the case, it would be
appropriate to direct the Defendants to pay to the plaintiff the amount
of USD 8,628.06/ i.e. amount of Rs. 6,10,564.67/ with interest at the
rate of 10% per annum from 16.02.2018 till its realization.
Hence, point No. 1 is answered “in Affirmative.” Point No. 2 is
answered “in the negative”. In the result, following order is passed.
ORDER
1. Suit is partly decreed with costs.
2. The Defendants are directed to pay to the plaintiff amount of
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8,628.06/ (United States Dollars Eight Thousand Six Hundred
TwentyEight and Six Cents Only) i.e. amount of Rs. 6,10,564.67/
(Rupees Six Lakhs Ten Thousand, Five Hundred SixtyFour and Paisa
SixtySeven Only) with interest at the rate of 10% per annum from
16.02.2018 till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 16.02.2021 Gr.Bombay at Mumbai.
Dictated on : 16.02.2021
Transcribed on : 17.02.2021 & 18.02.2021
Signed by H.H.J.on : 24.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.02.2021 at 3.00 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
16.02.2021
Judgment/order signed by P.O. on 24.02.2021
Judgment/order uploaded on 24.02.2021
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