Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Summary Suit No.988/2019
Filed on : 07.09.2019
Registered on : 10.10.2019
Decided on : 31.01.2020
Duration : Yr00 Ms03 Ds22
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.988 OF 2019
(CNR NO.MHCC010092642019)
Exhibit26
Chetan R. Shah,
Age : about 36 years, Occ.: Advocate,
Address : Balaji Krupa, 312, 5th Floor,
Falt No.501, Opp. Nappo Hall,
Telang Road, Matunga (Central Railway),
Mumbai – 400 019. ….Plaintiff
V/s.
1. Mani Bharda Investment & Reconstruction Co.,
A partnership firm having principal place of business
at G1 to G3, Gaj Laxmi Apartment,
Off. Babhai Naka, Borivali (W),
Mumbai – 400 092.
2. Narendra D. Shah,
Age : Adult, Occ.: Business,
Partner of Mani Bhadra Investment &
Reconstruction Co.,
Address : G1 to G3, Gaj Laxmi Apartment,
Off. Ram Mandir Road,
Babhai Naka, Borivali (W),
Mumbai – 400 092.
3. Himanshi Narendra Shah,
Age : Adult, Occ.: Business,
Partner of Mani Bhadra Investment &
Reconstruction Co.,
Address : G1 to G3, Gaj Laxmi Apartment,
Off. Ram Mandir Road,
Babhai Naka, Borivali (W),
Mumbai – 400 092. ….Defendants.
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:2: Summary Suit No.988/2019
CORAM : HER HONOUR JUDGE
Smt. SABIHA G. SHAIKH
DATED : 31st January, 2020.
(C.R.No.59)
Appearances:
learned Adv. Mr. Rakesh K. Agarwal for the plaintiff.
Exparte against the Defendants.
: J U D G M E N T :
(Delivered on this 31st January, 2020)
This is a suit for recovery of money.
The case of the plaintiff in the short is as under :
2. Plaintiff is a Advocate by profession. Defendant No.1 is an
unregistered partnership firm. Defendants No.2 & 3 are partners of
defendant No.1 firm and defendant No.2 is father of defendant No.3.
On 08.09.2016, plaintiff vide cheque bearing No.000258 advanced
Rs.3,00,000/ to defendants. The defendants executed promissory note
on 08.09.2016 and promised to repay the said amount with 1.05 % per
month from the aforesaid date. Inspite of various requests made by the
plaintiff and receipt of legal notice, the defendants failed to repay the
said amount to the plaintiff. Hence, plaintiff is constrained to file this
suit for recovery of Rs.3,41,455/ with interest @ 1.05 % per month
from the date of the filing of the suit till its realization.
3. The defendants No.1,2,3 appeared on suit summons on
18.11.2019. Defendants No.1,2 & 3 were duly served with the summons
for judgment on 04.12.2019, but failed to file reply/leave to defend.
Therefore, summons for judgment is made absolute and the matter is
kept for judgment.
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:3: Summary Suit No.988/2019
4. Considering the contentions in the petition, following points arise
for my determination and I record my findings thereon with reasons
given below :
Sr.
No.
POINTS FINDING
1] Whether plaintiff is entitled to recover
amount of Rs.3,41,455/ along with
interest ?
A] If yes, what would be the rate of
interest?
Yes
Rs.3,41,455/ with
interest at the rate
of Rs.1.05% per
month.
2] What order and decree? As per final order
: R E A S O N S :
5. In the present matter the plaintiff filed following documentary
evidence:
Documentary evidence:
Exhibit
No.
Description of document
8 Original promissory note dated 08.09.2016 duly executed by
defendant No.1 in Gujarati language alongwith its translated
copy.
9 Original passbook of Bank of Baroda containing entries about
the debit of Rs.3,00,000/ from the account of plaintiff in
favour of defendant No.1.
10 4 Original passbook evidencing the fact of payment of interest
by defendant No.1.
11 Original certificate by Bank of Baroda and the Kotak
Mahindra Bank certifying entries in the passbook.
12 Office copy of demand notice, which was duly accepted and
acknowledged by Ms. Alpa Mehta for and on behalf of the
defendants on 28.08.2019.
13 Original receipts issued by DTDC courier.
14 3 Original computerized print out of tracking report of the
letters booked from DTDC.
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Exhibit
No.
Description of document
15 Original certificate under the provisions of Section 65(B) of
Evidence Act.
16 Original office copy of letter dated 24.08.2019 with original
postal booking receipts all dated 24.08.2019 bearing
No.RM117612910IN, RM117612923IN, RM117612937IN.
17 Original office copy of letter dated 24.08.2019 with 3 original
postal booking receipts of Speed Post POD dated 24.08.2019
bearing No.EM879753664IN, EM879753783IN,
EM879753908IN.
18 5 Original envelops sent on 24.08.2019 which were returned
back undelivered.
19 3 Original registered post A.D. bearing No.RM117649557IN,
RM117649565IN, RM117649588IN all dated 30.08.2019.
20 3 Original Speed Post POD EM879768045IN,
EM879768037IN, EM879768023IN all dated 30.08.2019.
21 5 Original envelops sent on 30.08.2019 which were received
back undelivered.
22 Original screen shot of notice sent by my advocate which was
forwarded to me.
23 Original print out of email dated 30.08.2019 alongwith its
attachment.
24 Original letter dated 30.08.2019 alongwith the envelope
addressed to advocate of the plaintiff.
25 Original particulars of claim.
6. The plaintiff has relied on documentary evidence. Heard Learned
Advocate for the plaintiff at length.
AS TO POINT NO.1 :
7. The oral and documentary evidence of the plaintiff's has
remained unchallenged. I have gone through the documentary
evidence.
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8. All the documents produced by the plaintiff at Exh.8 to 24 go to
establish that defendants have dues of Rs.3,41,455/ to the plaintiff.
The defendants have failed to pay the above said dues to the plaintiff on
the date of filing of the suit.
9. The plaintiff has claimed 1.05% per month 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
and there is a contract pertaining to the same between the parties. In
the present case the transaction is commercial one, and there exists
contract between the parties as to the rate of interest i.e. 1.05% per
month. The rate of interest 1.05 % per month would be just and proper.
Hence, point No.1 is answered in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point No.1, it is held that
plaintiff is entitled to recover Rs.3,41,455/ from the defendants with
interest at the rate of Rs.1.05% per month from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendants. Hence, in answered to point No.2, I proceed to
pass the following order.
: O R D E R :
1. The defendants jointly and severally do pay Rs.
3,41,455/ (Rs.Three Lakhs Forty One Thousand Four
Hundred Fifty Five Only) to the plaintiff with interest
at the rate of 1.05% per month from the date of
filing of the suit till its realization.
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2. Defendants do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Summons for Judgment No.283/2019 is disposed of.
Date:31.01.2020 (Smt. S.G. Shaikh)
AdHoc Judge,
City Civil Court,
Gr. Bombay
Typed on : 31.01.2020.
Signed on : 31.01.2020.
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:7: Summary Suit No.988/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.01.2020 5.35 p.m. Mr. Tushar P. Kuwar
Name of the Judge H.H.J. SABIHA G. SHAIKH.
Adhoc Judge.
(Court Room No.59)
Date of pronouncement of Order 31.01.2020
Order signed by P.O. on 31.01.2020
Order uploaded on 31.01.2020
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