Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 114/2019
Lodged on : 09.08.2019
Admitted on : 21.09.2019
Decided on : 25.08.2022
Duration : Y M D
3 0 16
COMMERCIAL SUIT NO. 114 OF 2019
CNR NO. : MHCC010084312019
Exh.15
Mrs. Shobhana Manishkumar Jariwala
Age : 68 years of Mumbai, an adult
Indian having address at Neeta Cooperative
Housing Society Ltd., Shop No. 6, Ground
Floor, Plot No. 90, Netaji Subhash Road,
Marine Drive, Mumbai – 400 002 through
her C.A. Navinchandra H. Jain ...Plaintiff
Versus
Ashok Devichand Shah
Age not known, of Mumbai an adult
Indian Inhabitant, having his address at
107/501, Shreejikiran, M.G.L.T Cross
Road No. 6, Goregaon (West),
Mumbai. ...Defendant
Appearance:
Adv. Mr. Ramesh Jain for the Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 25th AUGUST 2022
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2 Judgment in Commercial Suit No. 114/2019
J U D G M E N T
(Delivered on : 25.08.2022)
The plaintiff has filed the suit for the recovery of the
amount of Rs.15,30,971.46ps. along with future interest at the rate of
12% per annum from the defendant. Initially, the suit was registered as
Commercial Suit. After scrutiny of papers, it reveals that the suit is
registered as Commercial Suit.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is a resident of Mumbai. On 13.02.2012, the
defendant approached the plaintiff for extending financial assistance by
way of business Loan and upon request of the defendant and as the
defendant was very well known to the plaintiff, therefore the plaintiff
accepted the request of the defendant and by way of business loan
extended financial assistance by way of cheque for an amount of
Rs.10,00,000/ by cheque bearing no. 309329 drawn on Citi Bank,
Mumbai. The defendant duly encashed the said cheque. The defendant
agreed to pay interest at the rate of 1% per month and accordingly paid
interest on the said amount of Rs.10,00,000/ from time to time and
lastly paid interest upto 31.03.2015 to the plaintiff by cheques. The
defendant pleaded financial difficulties and requested the plaintiff to
wait for some time and assured that the defendant will pay the amount
together with interest. Thereafter, the defendant issued Confirmation of
Account in writing for the period from 01.04.2017 to 31.03.2018 after
adding the agreed interest as set out. By the said Confirmation of
Account in writing dated 01.04.2018 specifically admitted and
confirmed the abovementioned fact in writing and it is duly signed by
the defendant. The plaintiff by his Advocate's letter dated 23.01.2019
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recorded the facts and called upon the defendant to pay the said
amount of Rs.10,00,000/ and interest. The defendant received the said
notice, but he avoided to comply the said notice. The defendant by his
Advocate's letter dated 18.02.2019 replied the said notice. By the said
letter, the defendant admitted and confirmed the abovementioned facts.
The plaintiff further submit that the defendant paid last interest at the
rate of 12% per annum on the amount of Rs.10,00,000/ by cheques.
There is now due and payable by the defendant to the plaintiff a sum of
Rs.15,30,971.46ps. Hence, the plaintiff has filed the present suit against
the defendant and prayed that the defendant be ordered to pay an
amount of Rs.15,30,971.46ps. to the plaintiff along with interest at the
rate of 12% per annum on the principal amount of Rs.10,00,000/.
3. The suit summons was issued to the defendant through
RPAD. The summons issued to defendant by RPAD was returned back
with postal endorsement as “unclaimed”. The summons served to the
defendant by RPAD, which is unclaimed by the defendant is a good
service. Therefore, the suit was proceeded exparte against the
defendant as per order dated 10.03.2021.
4. From the above facts and circumstances, following points
arise for my determination and I have recorded my finding against each
of them with the reasons to follows:
POINTS FINDING
1) Whether the plaintiff proves that
an amount of Rs.15,30,971.46ps. is
outstanding from the defendant?
In the affirmative.
2) Whether plaintiff is entitled to In the affirmative
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recover an amount of
Rs.15,30,971.46ps. from the
defendant. If yes, at what rate of
interest?
Interest at the rate of 12% per
annum on the principal amount.
3) What order and decree? As per final order.
R E A S O N S
5. In support of the pleading, the plaintiff examined his Power
of Attorney holder namely Mr. Navinchandra Jain at Exh.7. The plaintiff
also placed on record the documentary evidence i.e. Confirmation of
Account in writing at Exh.9, Letter dated 23.01.2019 at Exh.10, the
reply filed by the defendant at Exh.11, Bank Statements and Bank
Records at Exh.12 and Original Power of Attorney at Exh.13. The
evidence closure pursis of the plaintiff is at Exh.14.
6. Heard Learned Advocate Mr. Ramesh Jain for the plaintiff
at length.
As to point nos. 1 to 3
7. According to the plaintiff, on the request of the defendant,
the plaintiff advanced the loan of Rs.10,00,000/ to the defendant by
issuing the cheque on 13.02.2012 and defendant also issued the
Confirmation of the Account in writing on 01.04.2018 and thereby
defendant admittedly confirmed the facts in writing duly signed by the
defendant. The defendant also paid interest at the rate of 12% per
annum on the said amount by cheques. At the outset, it is to be noted
that the transaction in between the plaintiff and the defendant was
taken place on 13.02.2012. It is seen from the copy of Statement of
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Account that the defendant has paid interest from time to time by
cheques and last Confirmation of Account in writing was issued on
01.04.2018. The defendant by sending reply at Exh.11 also admitted his
liability to pay the due amount to the plaintiff. It is seen from the
Statement of Account at Exh.12 that the defendant made payment on
06.04.2015. Then on 01.04.2018 defendant lastly made Confirmation of
Account. The suit was filed by the plaintiff on 09.08.2019. The
defendant has admitted his liability to pay the due amount and given
the Confirmation of the Account in writing. If the aforesaid period is
calculated, it appears that the suit filed by the plaintiff is well within
limitation.
8. According to the plaintiff, he has advanced the loan of
Rs.10,00,000/ to the defendant by issuing cheque drawn on Citi Bank,
Mumbai. The defendant also paid interest to the plaintiff on the amount
of Rs.10,00,000/ from time to time. The averments made by the
plaintiff were not denied or disputed by the defendant. The defendant
has not filed any Written Statement on record. Therefore, it can be said
that the averments made in the plaint were admitted by the defendant.
9. In support of the pleading, the plaintiff has examined his
Power of Attorney Holder namely Navinchandra Jain at Exh.7. The
evidence of Power of Attorney of the plaintiff is in consonance with the
averments made in the plaint. The suit was also filed by the Power of
Attorney Holder of the plaintiff. Therefore, he can depose on behalf of
the plaintiff. According to the plaintiff's witness, on the request of the
defendant, on 13.02.2012 the plaintiff extended financial assistance to
the defendant by issuing cheque for the amount of Rs.10,00,000/. The
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defendant has agreed to pay interest at the rate of 1% per month on the
said amount. He further deposed that the defendant issued
Confirmation of the Account in writing. The original Confirmation of
Account bears the signature of the defendant. The defendant promised
the plaintiff that he will pay the said amount of Rs.10,00,000/ and
interest thereon. However, he neglected to pay the same. Therefore, the
plaintiff's Advocate issued legal notice to the defendant and called upon
him to pay the outstanding amount. The aforesaid oral evidence of the
plaintiff is not challenged by the defendant. The defendant failed to
conduct the cross examination of the plaintiff. Therefore, the evidence
of the plaintiff is remained unchallenged. Hence, I have no reason to
disbelieve the oral evidence of the plaintiff.
10. The oral evidence of the plaintiff is supported by the
documentary evidence at Exh.9 to 13. The copy of Confirmation of the
Account dated 01.04.2018 Exh.9 shows that the defendant has agreed
to pay the loan amount to the plaintiff. It bears the signature of the
defendant. The Statement of Account of the plaintiff at Exh.12 shows
that on 13.02.2012 the plaintiff paid the amount of Rs.10,00,000/ to
the defendant by cheque. The said Statement of Account also shows
that from time to time the defendant has paid the amount of interest.
The copy of notice at Exh.10 also shows that the plaintiff sent notice to
the defendant and called him to repay the said loan amount with
interest. The copy of reply of the defendant at Exh.11 also shows that
the defendant also admitted that the amount were obtained in the
personal name of Director. Thus, the documentary evidence tendered by
the plaintiff goes to show that the defendant has received an amount of
Rs.10,00,000/ from the plaintiff by way of cheque. The documentary
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evidence proved that the plaintiff advanced the loan of Rs.10,00,000/
to the defendant and the defendant also issued the Confirmation of the
Account in writing. The defendant has not challenged the oral as well as
documentary evidence tendered by the plaintiff. Therefore, the
documentary evidence filed by the plaintiff is also remained
unchallenged. Hence, I have no reason to disbelieve the documentary
evidence tendered by the plaintiff.
11. The oral and documentary evidence tendered by the
plaintiff was not challenged by the defendant. Therefore, I have no
reason to disbelieve the version of the plaintiff. In short, the plaintiff by
leading oral and documentary evidence sufficiently established that the
amount of Rs.15,30,971.46ps. is outstanding from the defendant.
Hence, the plaintiff is entitled to recover the said amount from the
defendant.
12. So far as interest rate is concerned, the plaintiff has claimed
interest at the rate of 12% per annum. Interest at the rate of 12% per
annum would be just and proper considering commercial nature of
transaction. Costs of the suit is liable to be imposed on the defendant. In
the light of above discussion, I record my finding as to points nos. 1 in
the affirmative and point no. 2 accordingly. Hence, I pass the following
order:
ORDER
1) Commercial Suit No. 114 of 2019 is decreed with costs.
2) The defendant do pay an amount of Rs.15,30,971.46 ps.
(Rs. Fifteen Lakhs Thirty Thousand Nine hundred and
Seventy one and forty six paise only) to the plaintiff
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along with interest at the rate of 12% per annum on the
principal amount of Rs.10,00,000/ from the date of
filing of the suit till realization within 3 months from
the date of this decree.
3) Defendant shall bear the costs of the suit.
4) Court fee, if any, be refunded as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 25.08.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 25.08.2022
Typed on : 26.08.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
29.08.2022 12.45 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
25.08.2022
Judgment/order signed by P.O on 26.08.2022
Judgment/order uploaded on 29.08.2022
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