Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010081562019
Presented on : 01082019
Registered on : 26112019
Decided on : 20092021
Duration : Y2, M1,D19
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
COMMERCIAL SUIT NO.208 OF 2019
Manohar Khandu Kalbhor ]
Age: 45 years, ]
Indian Inhabitant, carrying on business ]
at Patra Chawl Near Gujrathi School, ]
Subhash Nagar, New Mill Road, Kurla (W), ]
Mumbai 400 070. ]....Plaintiff
V/s
Rosamma G. Joseph ]
Adult, working for gain with Mahanagar ]
Telephone Nigam Ltd. Dept. GM (East1), ]
Staff No. MO31230, PF No. BYTD/39544, ]
Nityanand Nagar, Ghatkopar (W), ]
Mumbai 400 086 ]
And residing at B. No. 203, Jalwanti ]
Apartment, Aptewadi, Shirgaon, Kulgaon, ]
Ambarnath, Thane (W), 421 503. ]....Defendant
APPEARANCE :
Ld. Adv.Rajesh Patil for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 20th September, 2021.
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EXPARTE JUDGMENT
(Dictated in Open Court)
This is summary suit under Order XXXVII of the Code
of Civil Procedure, 1908 filed under the Commercial Courts Act,
2015 for recovery of amount from the defendant on the basis of
demand promissory note.
In brief, the facts of the plaintiff's case are as under :
2. The plaintiff is licensed Money Lender doing business
of money lending. On 08.07.2018, the defendant has executed the
demand promissory note in favour of the plaintiff for valuable
consideration of Rs.4,00,000/, received by the defendant from the
plaintiff. By said demand promissory note, the defendant has
promised to pay the plaintiff the sum of Rs.4,00,000/ alongwith
interest at the rate of 18% p.a. In spite of repeated demands, the
defendant has failed and neglected to pay the said amount to the
plaintiff. On the date of filing of this suit, the defendant was liable
to pay the amount of Rs.4,34,917/ alongwith interest at the rate
of 18% p.a. To recover this amount from the defendant, the
plaintiff has filed this suit.
3. The suit is proceeded exparte against the defendant.
4. Heard the learned Advocate for the plaintiff. No
argument of the defendant. Points for determination along with
my findings thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiff proves that against the
amount received from him, the defendant
for the purpose of repayment of the same
Yes
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has executed the demand promissory note
for Rs.4,00,000/?
2. What shall be the rate of interest? @9% p.a.
3. Whether the defendant has failed to pay the
amount of Rs.4,00,000/ and interest
thereon?
Yes
4. What order and decree? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 TO 3:
5. All these points are interlinked with each other, hence
they are taken together for consideration. The plaintiff in support
of his claim has examqined himself as Manohar (PW1) at Exh.06.
The plaintiff has relied on following documents:
1 Demand Promissory Note at Exh.9
2 Copy of Legal Notice and unserved envelope at Exh.10 colly
3 Copy of Money Lenders License at Exh.11
4 Copy of Form No.10 at Exh.12
6. Manohar (PW1) deposes that he is doing business of
money lending. On 08.07.2018, the defendant has executed
demand promissory note for valuable consideration of
Rs.4,00,000/ received by the defendant. The rate of interest is
18% p.a. In spite of repeated demands, the defendant has failed to
make payment of Rs.4,00,000/ alongwith interest thereon.
7. The copy of money lender license Exh.11 shows that
the plaintiff is registered Money Lender, carrying business of
money lending. His license is valid from 01.04.2018 to 31.03.2019.
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On 08.07.2018, the defendant has obtained loan from the plaintiff.
On the said date, the plaintiff was licensed money lender. The
demand promissory note Exh.09 shows that the defendant has
executed it in favour of the plaintiff for Rs.4,00,000/. The copy of
Form No.10 Exh.12 also supports this fact. The demand
promissory note does not bear rate of interest. Therefore, there is
no agreed rate of interest in the demand promissory note.
8. The oral as well as the aforesaid documentary
evidence shows that the defendant has obtained loan of
Rs.4,00,000/ from the plaintiff. The legal notice Exh.10 colly
was attempted to be served on the defendant. It appears that the
defendant has failed and neglected to repay the amount of loan
with interest. In spite of opportunity, the defendant has failed to
appear in this suit and defend the same. The defendant has not
disputed or challenged the plaintiff's case, hence, same is required
to be accepted. The plaintiff has proved that for the aforesaid
amount of Rs.4,00,000/ received from the plaintiff, the defendant
has executed the demand promissory note and has failed to repay
the same. The demand promissory note does not bear agreed rate
of interest. Therefore, I am of the view that the rate of interest for
commercial transactions can be considered. I am of the view that
the plaintiff will be entitled to recover the due amount with
interest at the rate of 9% p.a. In the result, I answer Points No.1
and 3 in the affirmative. As aforesaid, the plaintiff is entitled to
recover said amount with interest at the rate of 9% p.a. Hence, I
answer point No.2 accordingly.
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AS TO POINT NO.4:
9. In view of my findings recorded against point Nos.1 to
3, the suit is required to be partly decreed. As the defendant has
compelled the plaintiff to file this suit, the defendant shall bear
costs of the suit. In the result, in answer to point No.4, I pass the
following order.
ORDER
1. Suit is partly decreed with costs.
2. The defendant do pay to the plaintiff the amount of
Rs.4,00,000/ (Rupees Four Lacs Only) with the
interest at the rate of 9% per annum from
08.07.2018 till realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :20.09.2021 Mumbai.
Dictated online on : 20.09.2021
Typed on : 20.09.2021
Signed by HHJ on : 21.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.09.2021 at 5.45 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
20.09.2021
Judgment/order signed by P.O. on 21.09.2021
Judgment/order uploaded on 21.09.2021
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