Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010082722019 Presented on 06-08-2019
Registered on 28-08-2019
Decided on 19-10-2023
Duration 04Y: 02M: 13D
Exhibit 6
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 852 OF 2019
Mrs. Azra Firoz Khan ]
Aged about 31 years, Muslim, an adult ]
Indian Inhabitant of Mumbai, Occupation:Housewife ]
and residing at Plot No.13/F/4, Sanjay Nagar, ]
Road No.9, Baiganwadi, Govandi, Mumbai-400043. ]...Plaintiff
VERSUS
Mr. Mohd. Ajaj Ali Jabair Shaikh ]
Aged about years, Muslim, an adult ]
Indian Inhabitant of Mumbai, Occupation:Business ]
and residing at Plot No. 14/G/6, Road No.9, ]
Baignwadi, Govandi, Mumbai-400043. ]...Defendant
Appearance :
Ld. Advocate Mr. S. D. Bhandary for the plaintiff.
Defendant absent - (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 19/10/2023.
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2 Sum Suit No.852/2019
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount
of Rs.1,76,800/-. Brief facts of the plaintiff’s case may be summarized
as under:
2. According to the plaintiff, defendant and his family are
friends. They know each other for more than 20 years. Somewhere in
January, 2018, the plaintiff advanced to the defendant a friendly loan
of Rs.3,00,000/- in cash in three installments. The defendant promised
to return the entire friendly loan amount on or before 1st week of
December, 2018. Inspite of good business and earning profit, the
defendant did not talk about returning friendly loan amount.
Therefore, the plaintiff asked the defendant about the friendly loan
received from him. The defendant immediately issued two cheques
bearing cheque No.293074 dated 22-02-2019 for the sum of
Rs.56,800/- and the another cheque bearing No.293077 dated
08-03-2019 for the sum of Rs.1,20,000, which were drawn on
Hindustan Bank, Govandi, Mumbai 43, in his favour as part payment of
the loan amount, and promised to issue two more cheques for the
balance amount Rs.1,23,200/- in two months period and also informed
the plaintiff to present cheque only after 20th April, 2019.
3. On 23rd April, 2019, the plaintiff deposited both cheques to
the Bank, but same were dishonoured for the reasons “Funds
insufficient”. When this fact informed to the defendant, the defendant
assured for returning the entire friendly loan amount in cash in a week.
But the defendant did not keep his promise. Hence, she issued a
demand notice dated 10-05-2019 through her advocate and called
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3 Sum Suit No.852/2019
upon the defendant to pay the the said amount. Inspite of receipt of
notice, the defendant failed to pay the amount and therefore, he filed
the present suit on the basis of dishonoured cheques, and claimed a
decree for the amount of Rs.1,76,800/- along with further interest @
Rs.21% from the date of filing the suit till its full realization. Hence,
the present suit.
4. The defendant was served with the writ of summons. The
plaintiff has filed affidavit of service at Exh.2. However, he failed to
cause the appearance and hence, the suit proceeded ex-parte against
him by the order dated 20-08-2022.
5. In support of claim, the plaintiff filed her affidavit of claim
at Exh.3 and reiterated her contention of recovery of Rs.1,76,800/-
along with further interest at the rate of Rs.21% p.a. The plaintiff has
filed and relied upon following documents.
Sr. No. Particulars
1 Dishonoured Cheque No.293074 dtd.22-02-2019 for
Rs.56,800/-.
2 Dishonoured Cheque No.293077 dtd.08-03-2019 for
Rs.1,20,000/-.
3 Plaintiff Bank’s memo dated 23-04-2019 of Cheque
No.293074.
4 Plaintiff Bank’s memo dated 23-04-2019 of Cheque
No.293077.
5 Advocate’s Notice dated 03-05-2019
6 Postal receipt
6. To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
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4 Sum Suit No.852/2019
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled
to recover amount of
Rs.1,76,800/- from defendant?
If yes, at what rate of interest?
Yes.
Entitled to the interest @ Rs. 6%
p.a. from date of filing of the suit.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 & 2-
7. The plaintiff has filed her claim affidavit in support of her
contention of receipt of two post-dated cheque bearing No. 293074
dated 22-02-2019 of Rs.56,800/- and cheque bearing No.293077 dated
08-03-2019 of Rs.1,20,000/-. Her oral testimony is supported by the
original post-dated cheques dated 22-02-2019 and 08-03-2019 . The
plaintiff enjoys presumption under section 118(a) of Negotiable
Instruments Act, 1881, which supports the contention of the plaintiff
that the present post-dated cheques were issued for the valuable
consideration of Rs.1,76,800/- towards the repayment of loan.
8. As noted above, the plaintiff has filed on record the
documents of two dishonourd cheques of Rs.56,800/-
dated 22-02-2019 and of Rs.1,20,000/- dated 08-03-2019. The said
dishonoured cheques bear signatures of defendant. The plaintiff on
oath has deposed that the said post-dated cheques come to be
dishonoured due to Funds Insufficient in the account of the defendant.
9. It appears that the plaintiff had demanded the amount
by way of notice dated 03-05-2019. The said notice was sent on the
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5 Sum Suit No.852/2019
address of the defendant. As the suit proceed ex-parte against the
defendant, no contra evidence has come on record. Therefore, the
contentions of the plaintiff, can not be disputed. The defendant failed
to appear despite service of suit summons. Provision of Rule 2(3) of
order XXXVII of CPC, raises the presumption that owing to failure of
the defendant to cause his appearance, the defendant admits the
contents and the allegations in the plaint. Hence, I hold that the
plaintiff is entitled to recover the amount of Rs.1,76,800/- from the
defendant.
10. It may be seen that the plaintiff has prayed for further
interest at the rate of Rs.21% p.a. from the date of filing the suit till the
payment on Rs.1,76,800/-. But, it is important to note that the
transaction between the plaintiff and the defendant is appearing purely
a friendly hand loan transaction without any interest. The cheques
dated 22-02-2019 and 08-03-2019 for the total amount of
Rs.1,76,800/- were issued by the defendant without including any
amount of interest for the repayment of the hand loan. The rate of
further interest claimed is appearing excessive. Therefore, having
regard to the nature of transaction and the provision of section 34 of
the CPC, I am of the view that granting the interest at the rate of Rs.6%
p.a. on the amount of Rs.1,76,800/- from the date of filing the suit
would be just and proper. Hence, I hold that the plaintiff is entitled to
interest at the rate of of Rs.6% p.a. on the amount of Rs.1,76,800/-
from the date of the filing suit till its full realization. Hence, I answer
point No.1 accordingly. In the result, in an answer to point No.2, I
proceed to pass the following order.
O R D E R
1) Summary Suit No.852/2019 is hereby decreed with costs.
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2) The defendant shall pay an amount of Rs.1,76,800/- (Rupees One
Lakh, Seventy Six Thousands and Eight Hundred Only) to the
plaintiff along with the simple interest at the rate of Rs. 6% p.a.
from 06-08-2019, date of filing of suit till its full realization.
3) The plaintiff is entitled to get refund 2/3rd of the court-fees paid
by her.
4) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date: 19-10-2023 Court Room No.61
Mumbai.
Dictated on: 19-10-2023
Corrected & signed on : 20-10-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20-10-2023 at 11.35 a.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.) C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
19-10-2023
JUDGMENT/ORDER signed by P. O. on 20-10-2023
JUDGMENT/ORDER uploaded on 20-10-2023
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