Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 112/19. 1 Ex-parte Judgment (Exh.20).
MHCC010084482019
Presented on : 13-08-2019
Registered on : 21-09-2019
Decided on : 25-11-2021
Duration : 02 Yrs. 3 Mths. 12 Ds.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 112 OF 2019
Exh.20
Insta Capital Pvt Ltd., )
a company registered under the )
Companies Act, 1956, carrying on )
business at 207, Niranjan, 99, Marine )
Drive, Mumbai 400 002 ) ...Plaintiff
Versus
1. Vortex International Pvt Ltd., )
a company registered under the )
Companies Act, 1956, carrying on )
business at Basement No.3, Aman )
Chambers Near Tribhovandas Jewellers, )
113, Mama Parmanand Marg, Opera )
House, Mumbai 400 004 and at 63/1492, )
New Adarsh Nagar, Worli, Mumbai 400 025 )
2. Satishkumar Datwani, )
Adult, Indian Inhabitant of Bombay, age )
and full name not known carrying on )
business and residing at Flat 3001, Tower B, )
Vivarea Near Jacob Circle, Mahalaxmi, )
Mumbai 400 011. )
3. Madhvi Datwani )
Adult, Indian Inhabitant of Bombay, age )
and full name not known carrying on )
business and residing at Flat 3001, Tower B, )
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Comm.Suit No. 112/19. 2 Ex-parte Judgment (Exh.20).
Vivarea Near Jacob Circle, Mahalaxmi, )
Mumbai 400 011. ) ...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 25th NOVEMBER, 2021.
Ms. Kavita S. Lalwani, Advocate for the plaintiff.
Defendants Exparte.
JUDGMENT (EXPARTE)
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a company registered under the Companies
Act, 1956. Defendant No.1 is also a company registered under the
Companies Act, 1956 and defendants No.2 and 3 are its Directors. The
plaintiff advanced amount of Rs.30 lakhs to the defendants as per
cheque No.932948 of Rs.30 Lakhs issued on 31.05.2018 and drawn on
ICICI Bank, Marine Lines Branch, Mumbai. After receipt of Rs.30 lakhs,
the defendants drew Bill of Exchange dated 31.05.2018 (Exh.11) of
Rs.30 lakhs in favour of the plaintiff. Defendants No.2 and 3 accepted
the said Bill of Exchange (Exh.11) for payment. Subsequently, the
defendants repaid sum of Rs.18 Lakhs towards part payment of the Bill
of Exchange (Exh.11) as enumerated in para 4 of the plaint.
3. For the payment of remaining Rs. 12 Lakhs, the defendants
issued a cheque No. 000085 dated 05.03.2019 (Exh.19 colly.) of Rs. 6
Lakhs drawn on ICICI Bank, Samachar Marg, Fort Branch, Mumbai and
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Comm.Suit No. 112/19. 3 Ex-parte Judgment (Exh.20).
also agreed to pay Rs.6 Lakhs by Two ECS of Rs.3 Lakhs each. When
the plaintiff presented cheque No.000085 to the defendant's Banker
through the plaintiff's Banker i.e. Bank of Baroda, the said cheque was
dishonoured with remark on dishonoured memo (Exh.19 colly.) dated
06.03.2019, “account closed”. Similarly, above referred two ECS were
dishonoured as per dishonoured memos dated 30.12.2018 and
30.01.2019(Exhs.17 and 18 respectively ). Exh.17 discloses the reason
as “balance insufficient”. Account was closed as per Exh.18.
4. As the defendants failed to repay the amount of Rs.12
lakhs, the plaintiff presented the Deed of exchange (Exh.11) for
payment to the defendants, but they dishonoured the same and
promised to pay the amount within short time. Then, the plaintiff sent
letter dated 12.03.2019 (Exh.12) through his Advocate to the
defendants for payment of Rs. 12 Lakhs with interest at the rate of 18%
per annum, but the defendants did not make the payment. The
defendants gave reply dated 27.03.2019 (Exh.13) in which they had
given excuses for nonpayment of the amount. Hence, the plaintiff
filed the suit for recovery of Rs.12 Lakhs with interest at the rate of 18%
per annum from the date of the suit till realization with costs.
5. Writ of summons was served upon Defendants No.1 to 3
by way of paper publication as per service affidavit Exh.5 and also by
pasting service as per service affidavit Exh.8, but they failed to appear.
Therefore, I passed exparte order against defendants No.1 to 3 in
roznama dated 11.11.2021.
6. PW 1 Ashok Bajaj deposed on evidence affidavit (Exh.9)
and proved documents filed with list of documents (Exh.10). Proved
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Comm.Suit No. 112/19. 4 Ex-parte Judgment (Exh.20).
documents are at Exhs.11 to 13. The plaintiff closed evidence vide
pursis (Exh.14). The plaintiff also filed original documents with list
Exh.16 and they are marked as Exhs.17, 18 and 19 colly. Heard
learned counsel Kavita S. Lalwani for the plaintiff.
7. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.12,00,000/ ? If yes, at what rate of
interest ?
In the Affirmative.
@ 18% per annum.
2. What order and decree ? Suit is decreed.
REASONS
AS TO POINTS NO.1 & 2 :
8. PW 1 Ashok Bajaj has deposed that he had paid amount of
Rs. 30 Lakhs to the defendants by cheque No.932948 dated 31.05.2018,
drawn on ICICI Bank, Marine Lines Branch, Mumbai. He further stated
about execution of Bill of Exchange Exh.11 for repayment of Rs. 30
Lakhs by the defendants. He has identified signature of defendants
No.2 and 3 on the Bill of Exchange. He further stated about repayment
of Rs.18 Lakhs as described in para 7 of his evidence affidavit. He
further deposed about dishonoured of the Cheque (Exh.19 colly.) of
Rs.6 Lakhs and Two ECS of Rs.3 Lakhs each as per Exhs.17 and 18 on
the grounds of “insufficient balance” and “account closed” respectively.
Notice sent by the plaintiff's Advocate (Exh.12) is received by the
defendants. Reply Notice of the defendants (Exh.13) reveals that they
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Comm.Suit No. 112/19. 5 Ex-parte Judgment (Exh.20).
have admitted the liability, but expressed inability due to lien on the
bank accounts of the defendants created by the Income Tax Authority.
In short, the defendants have admitted their liability in writing by way
of reply notice Exh.13. The plaintiff has established its claim with the
help of oral evidence and all relevant documents. Bill of Exchange is
negotiable instrument as per Sec.5 r/w. Sec.13 of the Negotiable
Instruments Act. Therefore, the plaintiff is also entitled to interest at the
rate of 18% per annum in view of Sec. 80 of the Negotiable Instruments
Act. Costs of the suit is liable to be imposed on the defendants. In the
light of above discussion, I record my finding as to point no.1 in the
affirmative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 112/2019 is decreed.
2. Defendants No.1 to 3 are directed to pay an amount of
Rs.12,00,000/ (Rupees Twelve Lakhs Only) to the plaintiff with
interest at the rate of 18% per annum from the date of suit till
realization of the amount within three months from the date of decree.
3. Defendants No.1 and 3 are jointly and severally liable to pay
decretal amount to the plaintiff.
4. The defendants shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 25/11/2021. Mumbai.
1. Dictated online on : 25/11/2021.
2. Signed on : 25/11/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 112/19. 6 Ex-parte Judgment (Exh.20).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.11.2021. 4.45 p.m. Mr. S.S.Bathe
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 25/11/2021.
Judgment/Order signed by P.O. on 25/11/2021.
Judgment/Order uploaded on 25/11/2021.
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