Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010087282019
Presented on 21-08-2019
Registered on 20-09-2019
Decided on 09-03-2021
Duration Yrs. M. Days
01 06 19
CNR No. MHCC010087282019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.934 OF 2019
Mr. Jagdish H. Singh
Proprietor of M/s. Jagdish H. Singh
Carrying on business at Shivsagar Rahivashi Sangh,
Room No. 01, Chawl No. 09, R. B. Kadam Marg,
Bhatwadi, Ghatkopar (West),
Mumbai – 400 084.
...Plaintiff.
V/s.
Santosh Chandrakant Parab
Saibab Mandir, Room No. 717,
Sanmitra Krida Mandal,
above School No. 2,
Pitama Ramji Nagar,
R. B. Kadam Marg,
Bhatwadi, Ghatkopar West,
Mumbai – 400 084. ....Defendant.
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Appearances:
Ld. Adv Mr. Siddhant Shetty for plaintiff.
None present for defendant.
Suit proceeded ex-parte against defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.13)
DATED : 9th March, 2021
J U D G M E N T
(Ex-parte)
1. This is a suit for recovery under Order 37 Rule 2 of the
Code of Civil Procedure.
2. In brief, it is contention of the plaintiff that, plaintiff is
Proprietor of M/s. Jagdish H. Singh. Plaintiff carries money lending
business. Defendant approached to the plaintiff and demanded
financial help for business. Plaintiff had advanced a Sarafi loan of
Rs.1,40,000/- (Rs. One Lakhs Forty Thousand only) by cash to the
defendant. Defendant executed a receipt for the same. Defendant
agreed to pay interest at the rate of 18% p.a. from 18.02.2017 on the
said amount. Defendant did not pay said amount with interest. Plaintiff
sent demand notice on 26.04.2019 through his advocate and called
upon the defendant to pay a sum of Rs.50,000/- with interest at the rate
of 1.50% p.m.
3. Defendant paid time to time Rs.90,000/- (Rs. Ninety
Thousand only) to the plaintiff out of Rs.1,40,000/- (Rs. One Lakhs
Forty Thousand only). Defendant has to pay Rs.50,000/- i.e. remaining
amount out of Rs.1,40,000/- (Rs. One Lakhs Forty Thousand only).
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Defendant has to pay interest at the rate of 18% p.a. on remaining
amount of Rs.50,000/- (Rs. Fifty Thousand only) for the period from
01.11.2018 to 10.08.2019. In this way defendant has to pay
Rs.50,000/- + Rs.6,750/- = Rs.56,750/- (Rs. Fifty Six Thousand Seven
Hundred Fifty only). Hence, defendant be directed to pay to the
plaintiff total amount of Rs.56,750/- (Rs. Fifty Six Thousand Seven
Hundred Fifty only) with interest at the rate of 18% p.a. or at any such
over rate as this Court think fit on amount of Rs.50,000/- (Rs. Fifty
Thousand only) from the date of filing the suit till its full realization.
4. Defendant served with Writ of Summons on 27.09.2019
through speed post. Defendant did not appear. As per Roznama /
Noting dated 02.01.2020, suit is proceeded Ex-parte against the
defendant.
5. Plaintiff filed evidence affidavit Exh.6 and list of documents
with list Exh.7.
6. I have heard Learned Advocate Mr. Siddhant Shetty for the
plaintiff. Plaintiff stated in the affidavit of claim Exh.6 as per averments
of the plaint.
7. Perused Order 37 Rule 2 and Sub Rule (3) of the Code of
Civil Procedure. As per the said Sub Rule, the defendant shall not
defend the suit referred in sub-rule (1) of Rule 2 of Order 37 of the
Code of Civil Procedure unless he enters an appearance and in default
of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for
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any sum, not exceeding the sum mentioned in the summons, together
with interest at the rate specified, if any, up to the date of the decree.
8. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant, as per Rule 2 of
Order 37 of the Code of Civil Procedure and the defendant may at any
time within ten days from such service enter an appearance either in
person or by pleader and he shall file in Court an address for services of
Notice on him.
9. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
10. The proviso of Section 34 of the Code of Civil procedure
states that where the liability in relation to the sum so adjudged had
arisen out of a commercial transaction, the rate of such further interest
may exceed six percent per annum, but shall not exceed contractual
rate of interest or where there is no contractual rate, the rate at which
moneys are lent or advanced by Nationalized Banks in relation to
Commercial transactions.
11. Inspite of service of writ of summons defendant did not
enter his appearance within 10 days from the date of service of Writ of
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Summons, therefore, the suit is proceeded Ex-parte against the
defendant.
12. As per Order-37 Rule-2 Sub Rule-3 of the Code of Civil
procedure, the allegations in the plaint shall be deemed to be admitted,
as the defendant did not appear. There is nothing on record to discard
the contentions of the plaintiff. Hence, plaintiff is entitled for recovery
of amount of Rs.50,000/- (Rs. Fifty Thousand only) from the defendant.
Considering the transaction between the plaintiff and defendant, I am
of the opinion that plaintiff is entitled to charge interest at the rate of
9% (Nine) per annum on a sum of Rs.50,000/- (Rs. Fifty Thousand
only) from the defendant from 01-11-2018 till its full realization.
Hence, I proceed to pass the following order.
ORDER
Summary Suit no. 934 of 2019 is decreed with costs as under-
1. Defendant do pay a sum of Rs.50,000/- (Fifty Thousand only) to the
plaintiff with interest at the rate of 9 (nine) percent per annum on
amount of Rs.50,000/- from the date of 01-11-2018 till its full
realisation.
2. Court fee be refunded to the plaintiff if any as per rules.
3. Decree be drawn up accordingly.
4. Judgement dictated and pronounced in open court.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 09/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 09/03/2021
Transcribed on : 16/03/2021
Checked on : 16/03/2021
and Signed on : 16/03/2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.03.2021 at 11.45 a.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 09.03.2021
Judgment/order signed by P.O. on 16.03.2021
Judgment/order uploaded on 17.03.2021
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