Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010084432019
Presented On :-09.08.2019
Registered On :-21.08.2019
Delivered On :- 03.02.2021
Duration :-Y-01/M-05/D-26
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.843 OF 2019
Exhibit-11
Essa Mohammed Mohammed Zarif
Age- 51 years, of Mumbai an adult
Indian Inhabitant,
having his address at Room No.1,
Building No.50
Bomanji Street, Ward A, Mumbai-400 001 ….Plaintiff
V/s
Vishal N. Waingankar
age not known, of Mumbai an adult
Indian Inhabitant, having his address
at 42/4, Ganesh Darshan, B Wing, Umarkhadi
Sandhurst Road, Mumbai-400 009 ....Defendant.
SUIT FOR RECOVERY OF Rs.74,176.98 ps,
Appearance:-
Adv. Mr. Ramesh Jain for the Plaintiff.
Exparte against Defendant
CORAM :- HER HONOUR JUDGE
SMT S. G. SHAIKH
JUDGE,CITY CIVIL COURT,GR. MUMBAI
(C.R.NO.59)
DATE :- 03/02/2021
-- 1 of 5 --
2 Sum. Suit No.843/2019
J U D G M E N T
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
2. The facts of the suit are summarized as under :-
The plaintiff is carrying on business of money lending in
Mumbai. On 22/03/2019 the defendant executed a Demand Promissory
note in favour of the plaintiff for valuable consideration being a sum of
Rs.70,000/- received by the defendant from the plaintiff against and on
the basis of execution and handing over of the said Demand Promissory
Note. By the said Demand Promissory Note the defendant promised to
pay to the plaintiff the said sum of Rs.70,000/- alongwith interest
thereon @ 18% per annum on demand. The defendant failed and
neglected to pay the said sum and/or any part thereof . The defendant
failed to pay to the plaintiff in-spite of demands, reminders and receipt
of the advocate’s letter dated 20.05.2019. Hence, plaintiff is constrained
to file the suit for recovery of the said amount. The total suit claim of
the plaintiff for Rs.74,176.98 ps.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.74,176.98 ps with
interest on the
principal amount of
Rs.70,000/-
@ 18 % per annum.
2 What order and decree? Suit is decreed.
-- 2 of 5 --
3 Sum. Suit No.843/2019
R E A S O N S
5. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of documents Date
7 Promissory Note 22.03.2019
8 Plaintiff's advocate letter
along with postal
acknowledgment
20.05.2019
9 Money Lending License 06.06.2018
10 Forms under Bombay
Money Lending Act
22.03.2019
11 Ledger 22.03.2019
AS TO POINT NO.1 :-
6. All the documents produced by the plaintiff at Exhibit-7
and 11 goes to establish that plaintiff has given amount of Rs.70,000/-
to the defendant as loan. The documents further prove that the amount
of Rs.74,176.98ps is due and payable to the plaintiff from defendant
towards the loan amount. The defendant has failed to repay the said
loan amount to the plaintiff. The documents at list Exhibits 7 to 11 goes
to establish that the defendant is liable to pay Rs.74,176.98 ps. to the
plaintiff on the date of filing of the suit towards the said loan amount
and therefore the defendant has failed to repay his loan amount to the
plaintiff. In this background, it is held that plaintiff is entitled to recover
sum of Rs.74,176.98 ps from the defendant.
7. The plaintiff has claimed 18% per annum on the principle
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial
-- 3 of 5 --
4 Sum. Suit No.843/2019
and there is no contract pertaining to the same between the parties. In
the present case the transaction is commercial one and there is such
contract existing between the parties as to the rate of interest which
shall be levied. Therefore, the transaction is a simple handloan
transaction and rate of interest @ 18% per annum would be just and
proper to be awarded on the principle sum adjudged i.e. amount of
Rs.74,176. 98 ps. Hence, point No.1 is answered in the affirmative.
AS TO POINT NO.2:-
8. In view of discussion and finding on point No.1 it is held
that plaintiff is entitled to recover Rs.74,176. 98 ps from the defendant
with interest at the rate of 18% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from defendant. Hence, in answered to point No.2, I proceed to pass
the following order.
O R D E R
1. The defendant shall pay Rs.74,176.98 ps (Rupees Seventy
Four Thousand One Hundred Seventy Six and Ninety Eight
paise Only) to the plaintiff with interest on principal amount
of Rs.70,000/- at the rate of 18% per annum from the date
of filing of the suit till its realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per rule.
Date:03/02/2021 ( S. G. Shaikh)
Judge,City Civil Court,
Gr. Bombay
Dictated on :03/02/2021
Typed on :03/02/2021
Signed on :
-- 4 of 5 --
5 Sum. Suit No.843/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.02.2021 04.30.p.m. ( M.P Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
03.02.2021
JUDGMENT/ORDER signed by
P.O.on
03.02.2021
JUDGMENT/ORDER uploaded on 03.02.2021
-- 5 of 5 --