Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: MHCC010095872019
Presented on 22-07-2019
Registered on 18-09-2019
Decided on 09-04-2025
Duration Year Month Days
05 08 18
CNR No. MHCC010095872019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMARY SUIT NO.980 OF 2021
1. SMT. KANTABEN MANEKLAL CONTRACTOR,
Aged 73 years, Occ: household
having her address at 81/6, Badri-Vishal,
1st floor, Opp. Wadala Railway Gate No.4,
R.A. Kidwai Road, Wadala,
Mumbai – 400 031 and also
at 601, Vijay Residency CHSL,
N.P. Marg, Adjacent to UDCT,
Wadala, Mumbai – 400 031.
2. MANEKLAL ANANDJI CONTRACTOR
Aged 75 years, Occ: Retired,
having his address at 81/6, Badri-Vishal,
1st floor, Opp. Wadala Railway Gate No.4,
R.A. Kidwai Road, Wadala,
Mumbai – 400 031 and also
at 601, Vijay Residency CHSL,
N.P. Marg, Adjacent to UDCT,
Wadala, Mumbai – 400 031.
...Plaintiffs
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Versus
1. MITCHELL ASSOCIATES
a partnership firm having its
address at F/12, Everest Building,
7th floor, 156, Tardeo Road, Tardeo,
Mumbai – 400 034.
2. RAJESH NANDLAL SHRIMANEKAR
age not known, Occ: Business,
a partner of the defendant No.1 firm
having his address at F/12, Everest Building,
7th floor, 156, Tardeo Road, Tardeo,
Mumbai – 400 034. ..Defendants
Appearances:
Adv. Neha Kamble For plaintiffs
Ex-parte For defendants.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE
(C.R.No.83)
DATED: 9th April, 2025
J U D G M E N T
(Ex-Parte)
Suit under Order XXXVII of C.P.C for recovery of an amount
of Rs.10,00,000/-/- with 15% p.a based on promissory note.
2. In short, it is the case of the plaintiffs that:
The plaintiff No.1 gave friendly loan of Rs.10,00,000/- to
defendants with 1.25% p.m repayable on demand. The amount was
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paid by cheque No.044803 dated 11.04.2011 drawn on Vijaya Bank,
Wadala. In lieu of receipt of the amount, defendants executed and
handed “On Demand Promissory Note” dated 13.04.2011. The
defendants paid interest every six months by cheques by deducting TDS
amount and issued TDS Certificates. The defendants paid interest till
31.03.2016 and thereafter failed to pay interest from 1st April,2016. By
letter dated 07.11.2016 demand was raised, but defendants failed to
respond.
3. It is further case of the plaintiffs that, 17.07.2017 legal
notice through Advocate was issued. The defendants gave false reply
dated 26.07.2017 denying advancement of amount and payment of
interest. It was replied by notice dated 16.11.2017. The amount was
lent by plaintiff No.1, but as name of plaintiff No.2 also appears in the
demand promissory note, hence, joined as formal party. The plaintiffs
prayed for the decree.
4. Initially the suit was filed in the Commercial Court.
(C.R.No.32) bearing Suit No.108/2019 in which the defendants were
duly served. However, as they failed to appear, hence suit proceeded
ex-parte against them. The plaintiff through POA Mr. Mathew Luis
D'souza filed evidence affidavit and documents which were marked.
However, by an order dated 25.10.2021 it was held that, the dispute do
not come within the definition of Commercial Dispute and directed the
Registrar (Civil) to assign it to proper Court. Hence, the suit was again
registered afresh as Summary Suit.
5. After the suit was re-registered, writ of summons were
issued against defendants. The defendants were duly served, but
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defendant No.1 failed to appear. Hence, suit proceeded ex-parte. The
defendant No.2 appeared through Adv. Rahul Agarwal. The plaintiffs
filed S.J No.254/2022. The service affidavit Exh.27 was filed on record.
The defendants failed to file reply, hence by an order dated 03.02.2023
S.J was directed to proceed alongwith the suit. Thus practically the suit
proceeded ex-parte.
6. In view of the pleadings and documents filed by plaintiffs,
following points arise for my determination and consideration to which
I have given my findings along with reasons as under:
Sr. Points Findings
1. Are plaintiffs entitled for recovery of an amount of
Rs.14,87,500/- with 15% p.a from defendants ?
Affirmative.
2. What order and decree ? As per final
order
REASONS
7. In order to prove the suit claim, plaintiffs examined their
POA Mr. Mathew Luis D'souza whose evidence affidavit is filed vide
Exh.3. Reliance is placed on the following documents namely Demand
Promissory Note dated 13.04.2011 (Exh.5), Certificate from Bank of
Baroda (Exh.6), A computer print-out of the ledger account (Exh.7),
Form No.16A-TDS certificate dated 31.10.2014 (Exh.8), office copy of
letter dated 07.11.2016 (Exh.9), copy of acknowledgment card received
from postal authorities (Exh.10), office copy of legal notice dated
17.07.2017 (Exh.11), reply letter date 26.07.2017 (Exh.12 Colly), office
copy of letter dated 16.11.2017 (Exh.13), The RPAD Acknowledgement
card (Exh.14), application (Exh.15) filed by Adv. of plaintiff for taking
power of attorney, Power of Attorney (Exh.16), application filed by Adv.
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of plaintiff for return of original documents (Power of Attorney)
(Exh.17), undertaking filed by Adv. of plaintiff (Exh.18), evidence close
pursis (Exh.19), additional affidavit of evidence (Exh.20), evidence
close pursis (Exh.21), written submission of plaintiff (Exh.22), plaintiff
tendered pursis informing that there are no oral submission (Exh.23),
service affidavit (Exh.26) and written notes of arguments of plaintiff
(Exh.28).
AS TO POINT NO.1
8. It is plaintiff's case that friendly loan of Rs.10,00,000/- to
defendants by cheque No.044803 dated 11.04.2011 drawn on Vijaya
Bank, Wadala and to repay it, defendants executed On Demand
Promissory Note on 13.04.2011. The amount was demanded which
defendants failed to pay. Heard Adv. Kamble for the plaintiffs, gone
through written notes of argument Exh.28 and the documents filed on
record. The evidence affidavit of POA Mr. Mathew Luis D'souza is the
verbatim of the plaint and in absence of the same, the contents of it and
the plaint have gone unchallenged.
9. Perusal of the Ledger Account Exh.7 reveals an amount of
Rs.10,00,000/- being transferred from account of plaintiff No.1 to the
account of defendants. The Certificate Exh.6 issued by Bank of Baroda
shows amount of Rs.10,00,000/- deducted from the account of plaintiff
No.1. The Promissory Note Exh.5 is signed by defendant No.2,
whereas, Form. 16-A i.e the TDS Certificate shows defendants have
deducted the amount on interest paid by them. Thus the umpteen
documents filed on record proves a friendly loan of Rs.10,00,000/- was
advanced by plaintiff No.1 to defendants for which they executed the
promissory note and failed to repay the same when demanded.
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10. As discussed above, in absence of cross-examination, the
entire oral as well as documentary evidence of plaintiffs have gone
unchallenged. Hence, plaintiffs are entitled for recovery of the amount
with agreed rate of interest. As the amount was given from the account
of plaintiff No.1, hence, she alone is entitled for the amount. Hence,
point No.1 is answered in the affirmative.
AS TO POINT NO.2
11. In view of my affirmative finding to point No.1, the plaintiff
No.1 is entitled for recovery of an amount of Rs.14,87,500/- with 15%
p.a from defendants with costs of the suit. In the result, I proceed to
pass following order.
ORDER
1 The Summary Suit No.980 of 2021 is decreed with costs.
2 The defendants are directed to pay to plaintiff No.1 an amount of
Rs.14,87,500/- (Rs. Fourteen Lakh Eighty Seven Thousand and Five
Hundred Only) with 15% p.a from the date of filing of the suit till
its realization.
3 The S.J.254/2022 is disposed of.
4 The decree be drawn up accordingly.
5 The R & P be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:09-04-2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 09-04-2025
Transcribed on : 09-04-2025
checked on : 24-04-2025
Signed on : 25-04-2025 (N. B. Lavte)
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.04.2025 at 06.00 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri. N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
09.04.2025
Judgment/order signed by P.O. on 24.04.2025
Judgment/order uploaded on
due to non working of cis
25.04.2025
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