Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010087312019
Presented on 21-08-2019
Registered on 20-09-2019
Decided on 09-03-2021
Duration Yrs. M. Days
01 06 19
CNR No. MHCC010087312019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.937 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.
Pramod Kumar Singh
Lal Sahab Singh Ki Chawl,
Room No. 5, Parshiwadi,
Ghatkopar (West),
Mumbai – 400 086.
....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. He carries on business of Money
Lending. Defendant had approached to the plaintiff for financial help.
Plaintiff advanced a Sarafi loan of Rs.50,000/- (Rs. Fifty Thousand
only) by cash to the defendant. Defendant executed receipt of the
same. Defendant agreed to pay interest at the rate of 18% per annum
from 12.10.2018. Plaintiff advanced the said amount to the defendant
on 12.10.2018.
3. Plaintiff demanded the said amount from defendant.
Defendant did not pay the said amount. Plaintiff demanded the said
amount by issuing Notice on 26.04.2019 through advocate. Defendant
received the said Notice but did not make payment. The Sarafi loan is
given at Mumbai. Hence, defendant be directed to pay to the plaintiff
principle amount of Rs.50,000/- (Rs. Fifty Thousand only) and interest
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of Rs.7,500/- at the rate of 18% per annum calculated from the period
12.11.2018 to 10.08.2019. Defendant be directed to pay the amount of
Rs.50,000/- (Rs. Fifty Thousand only) + Rs.7,500/- (Rs.Seven
Thousand Five Hundred only) interest and further interest and further
interest on Rs.Rs.50,000/- (Rs. Fifty Thousand only) at the rate of 18%
per annum or at such other rate which demms fit to the Court till
realization of full amount.
4. Suit is proceed Ex-parte as per Roznama dated 02.01.2020
against the defendant.
5. Plaintiff filed evidence affidavit at Exh.6 and compilation of
documents Exh.7. Plaintiff Mr. Jagdish Singh deposed at evidence
affidavit Exh.6 as per averments of the plaint.
6. Perused receipt Exh.8. It is mentioned therein that
defendant on demand promised to pay to the plaintiff Rs.50,000/- (Rs.
Fifty Thousand only) with interest thereon at the rate of 18% per
annum The promisary Note Exh.8 is original.
7. Perused office copy of demand Notice dated 26.04.2019. By
the said Notice plaintiff demanded the said amount from defendant but
defendant failed and neglected to pay the said amount and interest.
8. Defendant served with Writ of Summons on 27.09.2019 by
Speed Post. Defendant did not appear. Hence, suit is proceeded Ex-
parte against the defendant.
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9. Heard Learned Advocate Mr. Siddhant Shetty for plaintiff.
10. 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
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.
11. 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.
12. 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.
13. The proviso of Section 34 of the Code of Civil procedure
states that where the liability in relation to the sum so adjudged had
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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.
14. Inspite of service of writ of summons defendant did not
enter his appearance within 10 days from the date of Writ of Summons,
therefore, the suit is proceeded Ex-parte against the defendant. In view
of provisions of Order 37 Rule 2 Sub-Rule 3 of Code of Civil Procedure,
the allegations in the plaint shall be deemed to be admitted and the
plaintiff shall be entitled to a decree if defendant fails to enter his
appearance within 10 days from the date of service of writ of summons
before the Court. There is nothing on record to discard the contentions
of the plaintiff.
15. 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 12.11.2018 till its full realization. Hence, I proceed to
pass the following order.
ORDER
Summary Suit no. 937 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 12-11-2018 till its full
realisation.
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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 : 19/03/2021
Checked on : 20/03/2021
and Signed on : 20/03/2021.
( 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”
20.03.2021 at 04.45 p.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 20.03.2021
Judgment/order uploaded on 20.03.2021
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