Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 363/2021
MHCC010085742019
Lodged on : 19082019
Admitted on : 03092019
Decided on : 09.03.2023
Duration : Y M D
3 6 18
COMMERCIAL SUIT NO. 363 of 2021
Exh.17
Bharat Bhanwarlal Mehta ]
Age 40 years, ]
An adult Indian Inhabitant ]
Occupation: Business ]
having his address at 603, Astral Mansion ]
Mussa Killedar Street, K.K. Marg ]
Saath Rasta, Mumbai 400 011 ]
PAN NO. AFGPM0418M ] ...Plaintiff
Versus
Mr. Mafatlal M. Mehta ]
an Adult Indian Inhabitant ]
Occupation: Business ]
having his address at 702, Nene Building ]
12, Sadashiv Lane, V.P. Road ]
Girgaum, Mumbai 400 004 ]
PAN NO. AAPPMO872P ] ...Defendant
Appearance:
Advocate Ms. Sanika Gharat along with advocate Mr. Amit Mehta
for Plaintiff.
Advocate Mr. Uttam Rane for defendant.
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2 Judgment in Com. Suit No. 363/2021
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE, (C.R.NO.31)
INCHARGE OF C.R.14
DATED : 9th MARCH 2023
J U D G M E N T
(Delivered on : 09.03.2023)
This is a suit filed by the plaintiff for recovery of amount of
Rs.40,05,813/ along with interest at the rate of 12% per annum from
defendant from the date of filing of the suit till its realization.
Brief facts of the plaintiff's case is as under:
2. Plaintiff and defendant are relative of each other. The
defendant requested plaintiff to lend him friendly loan of
Rs.25,00,000/ and also agreed that he would pay interest at the rate of
12% per annum. Plaintiff relied upon the defendant's assurance and had
lent him a friendly loan of Rs.25,00,000/ at the rate of 12% per
annum. The loan amount of Rs.25,00,000/ was paid by plaintiff to
defendant by RTGS on 16.11.2013. Defendant acknowledged his
liability by putting his signature on receipt which was signed by him in
plaintiff's presence. Defendant paid interest till 31.03.2015. Defendant
issued account confirmation statement for the financial year 20142015.
Defendant also gave account confirmation statement for the 20152016.
Defendant did not pay interest for the financial year 20162017.
Defendant neither paid interest nor issued balance confirmation
statement from 2017 to 2020. On 27.02.2019, plaintiff addressed one
letter to the defendant, requesting him to pay the aggregate amount of
Rs.37,96,525/ which was due to the plaintiff as on 27.02.2019.
Defendant did not respond to the letter. Plaintiff again addressed a
reminder letter requesting him to pay aggregate amount of
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3 Judgment in Com. Suit No. 363/2021
Rs.38,13,616/. Plaintiff also sent legal notice through advocate on
dated 11.04.2019 as defendant had stopped giving any response to the
communication addressed by the plaintiff. Hence, plaintiff filed the
present suit against defendant praying that defendant be ordered to pay
sum of Rs.40,05,813/ to the plaintiff along with interest at the rate of
12% per annum.
3. In spite of service of written summons defendant failed to
tender his appearance within stipulated time. Hence, as per order dated
04.11.2019, suit proceeded without appearance of defendant.
Thereafter, defendant filed Notice of Motion and as per order in Notice
of Motion No.1071/2020, the defendant is permitted to cause his
appearance. Thereafter, plaintiff filed Summons for Judgment bearing
No.62/2022. Defendant filed reply to the said Summons for Judgment
and contested the Summons for Judgment. After hearing both the sides,
my learned predecessor passed the order on Summons for Judgment
dated 11.04.2022 and defendant was directed to deposit an amount of
Rs.25,00,000/ in Court within a period of 12 weeks from 11.04.2022.
It is also observed that if the condition of the deposit is not followed by
the defendant within stipulated time, plaintiff shall be at liberty to apply
for exparte decree against defendant. The said order was passed by my
learned predecessor on 11.04.2022. It is also admitted fact that
defendant has preferred Writ Petition No.6471 of 2022 before the
Hon'ble High Court and the Hon'ble High Court dismissed the said Writ
Petition on 10.06.2022. The Hon'ble High Court also extended the
period by four weeks for depositing the amount of Rs.25,00,000/. The
defendant failed to pay the amount of Rs.25,00,000/ as per order
passed by this Court in Summons for Judgment No.62/2022. The
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4 Judgment in Com. Suit No. 363/2021
defendant also failed to deposit the amount as per the order of Hon'ble
High Court. Therefore, as per Order dated 17.08.2022 liberty was
granted to the plaintiff to apply for exparte decree. The plaintiff has
already filed the claim affidavit as well as document on record.
4. In support of the pleading, plaintiff filed affidavit at Exh.6.
The documentary evidence tendered by plaintiff along with list is at
Exh.7. The plaintiff filed original receipt at Exh.8. Bank Statements
Exh.9, Exh.10 and Exh.11, Original pay slip Exhibits 12 to 14 and
confirmation of Accounts Exh.15. In view of order passed in S.J. No. 62
of 2022, the leave to defend the suit was granted to the defendant and
permitted to file written statement on record if the condition of deposit
is complied. But the defendant not complied the condition mentioned in
order of Summons for Judgment. Therefore, there is no compliance of
the order passed by this Court on behalf of defendant. In other words,
there is no written statement on record. In my view, the averment made
in the plaint were not denied or disputed by the defendant.
5. 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 plaintiff proves that an
amount of Rs.40,05,813/ is
outstanding from the defendant? ...In the affirmative
2) Whether plaintiff is entitled to
recover an amount of
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5 Judgment in Com. Suit No. 363/2021
Rs.40,05,813/ from the defendant?
If yes, at what rate of interest ? In the affirmative.
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
6. Heard Learned Advocate Mr. Amit Mehta for the plaintiff at
length. None for defendant.
As to Point Nos.1 & 2
7. According to plaintiff on the request of defendant he
advanced friendly loan of Rs.25,00,000/ to the defendant by RTGS on
dated 16.11.2013. Defendant paid interest from time to time.
Defendant also gave account confirmation statement. According to
plaintiff, amount of Rs.40,05,813/ is outstanding from defendant. At
the outset, it is to be noted that in present case defendant has not
complied the order passed by this Court in Summons for Judgment
No.62/2022. Defendant also failed to deposit an amount as per order
passed by the Hon'ble High Court. Hence, the suit was proceeded ex
parte against defendant in view of order passed in Summons for
Judgment No.62/2022 as well as order dated 14.09.2022. Hence, there
is no denial on the part of defendant to the averment made in the
plaint.
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6 Judgment in Com. Suit No. 363/2021
8. PW1 Bharat Bhanwarlal Mehta is examined before Court at
Exh.6. The relevant documents submitted by plaintiff are Exhibits 7 to
15. Plaintiff has specifically deposed that he has advanced friendly loan
of Rs.25,00,000/ to defendant and defendant agreed to pay interest at
the rate of 12% p.a. Defendant issued account confirmation statement
from 2013 till 2017. According to this witness, letters were issued to
defendant from time to time to pay outstanding amount. The legal
notice was also sent by plaintiff to the defendant dated 11.04.2019. The
plaintiff placed on record copy of legal notice along with list Exh.4. No
reply was sent to the notice. Plaintiff has come with the case that he
transferred amount of Rs.25,00,000/ to the defendant by RTGS. There
is no specific denial on behalf of defendant to this statement. The entry
in the passbook at Exh.9 shows that amount of Rs.25,00,000/ was
transferred in the account of defendant. Plaintiff claimed that the
defendant has paid interest till 16.11.2013 to 31.03.2015 by cheque.
The plaintiff filed on record bank pay slip to show he had deposited the
cheque in his account maintained by Dena Bank. The original passbook
at Exh.9 and 10 shows that these cheques were encashed and interest
amount are deposited in his account. There is no specific denial
regarding the payment of interest made by the defendant to plaintiff by
cheque. The oral and documentary evidence tendered by plaintiff goes
to show that plaintiff transferred amount of Rs.25,00,000/ in the
account of defendant by RTGS. The evidence on record shows that
defendant by issuing three cheques paid interest at the rate of 12% p.a.
to the plaintiff till 31.03.2015. Thus, the oral as well as documentary
evidence tendered by plaintiff goes to show that the amount of
Rs.25,00,000/ was due from defendant towards principal amount.
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7 Judgment in Com. Suit No. 363/2021
9. Plaintiff also claimed amount of Rs.15,05,813/ by way of
interest from 01.04.2015 to 18.08.2019. The documents filed by
plaintiff shows that defendant has paid the interest from 2013 till 2017.
Defendant has agreed to pay interest over principal amount at the rate
of 12% p.a. Therefore, plaintiff is entitled to recover the amount of
interest of Rs.15,05,813/. The receipt at Exh.8 also shows that
defendant also agreed to pay interest at the rate of 12% p.a. over the
principal amount. In my view, defendant agreed to pay the interest at
the rate of 12% p.a. over principal amount. Plaintiff is entitled to
recover the amount of interest of Rs.15,05,813/ from defendant. In
short, plaintiff is entitled to recover the total amount of Rs.40,05,813/
from defendant with interest at the rate of 12% p.a. from the date of
filing of suit till its realization. Hence, I answer point No.1 in the
affirmative and point No.2 accordingly. Hence, I pass the following
order:
ORDER
1) Commercial Suit No. 363 of 2021 is decreed with costs.
2) The defendant do pay an amount of Rs.40,05,813/
(Rupees Forty Lakhs Five Thousand Eight Hundred
Thirteen Only) to the plaintiff along with interest at the
rate of 12% per annum on the principal amount from
the date of filing of the suit till its realization within
three months from the date of this decree.
3) Defendant shall bear the cost of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
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8 Judgment in Com. Suit No. 363/2021
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 09.03.2023 (A.S. Salgar)
Adhoc Judge,
Incharge of C.R.14
City Civil Court
Gr. Mumbai.
Dictated on : 09.03.2023
Typed on : 09.03.2023
Signed on : 13.03.2023
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9 Judgment in Com. Suit No. 363/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13.03.2023 5.10 p.m. Mr. Poul S.S.
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
09.03.2023
Judgment/order signed by P.O on 13.03.2023
Judgment/order uploaded on 13.03.2023
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