Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Received on : 20.09.2019
Registered on : 20.09.2019
Decided on : 08.09.2021
Duration : 01Y 11M 19D
EXHIBIT2
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.232 OF 2019
( CNR No.MHCC010096182019)
IN
SUMMARY SUIT NO. 1471 OF 2017
MR. DEVENDRA JANARDAN ]
SAWANT, Age 40 years ]
Occupation : Business, ]
Residing at 702, Shiv Siddhi, ]
G. V. Scheme Road No.1, ]
Kasturba Marg, Mulund East, ]
Mumbai400 081. ].. Plaintiff.
V/s.
MR. PRAPHULLA HARISCHANDRA ]
CHAVAN, Age 35 years, ]
Occupation : Business, ]
Residing at Plot No.14/24, ]
MHADA Colony, Mulund East, ]
Mumbai 400 081. ]..Defendant.
Advocate Mr. Barve for the plaintiff.
None present for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 8th SEPTEMBER, 2021
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JUDGMENT
The suit is instituted for recovery of Rs. 3,44,500/–.
2. It is the case of plaintiff that, the defendant requested
plaintiff to advance financial help on urgent basis. Accordingly, plaintiff
advanced amount of Rs. 325,000/– to defendant on 30/05/2015.
Defendant executed a demand promissory note on 05/06/2015 in
favour of plaintiff. Defendant paid the interest on the amount advanced
to him till September 2017. Defendant had assured to repay the
amount within 12 months, but infact, he failed to do so. Plaintiff
demanded the amount, but there was no response from the defendant.
Hence, plaintiff issued a demand letter on 01/09/2017 to the defendant
and defendant received the same. However, defendant failed to pay the
amount. Defendant issued reply to the demand letter on 25/09/2017
and declined execution of the promissory note. The defendant stated
that the financial help was accepted by him from the plaintiff and it was
also agreed to repay the amount in monthly installment of Rs. 6,500/–
for the period of 50 months. Plaintiff has further stated that defendant
now wants to avoid his liability. Hence, the plaintiff constrained to
institute the present suit. As per the case of plaintiff the interest rate
was agreed at 2% per month.
3. The summons was duly served upon the defendant. The
defendant appeared. Hence, plaintiff took out Summons for Judgment.
It was also served upon the defendant. Defendant appeared before the
Court and filed his affidavit in reply to the Summons for Judgment with
prayer of leave to defend.
4. It is the case of defendant that the plaintiff has suppressed
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material facts. It is the case of defendant that he and plaintiff were
good friends and the defendant was in need of money in the month of
June 2015. He requested plaintiff for interest free friendly loan. He
offered to repay the same in equal monthly instalments of Rs. 6500/–
each for the next 50 months. Plaintiff agreed to advance the amount
and accordingly defendant has repaid Rs. 166,100/– to the plaintiff till
date.
5. It is the case of plaintiff that he never executed any demand
promissory note in favour of plaintiff. Plaintiff is trying to extort money
by claiming interest at 2% per month. He has further stated that
plaintiff is not having valid license to charge the interest on the
principal amount. For all these reasons the defendant has prayed for
unconditional leave to defend.
6. Considering the contentions in the plaint and defence
raised by the defendant, following points arise for my determination
and my findings to them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the relief
of making the summons for judgment
absolute?
In the
Affirmative
2 Whether the defendant is entitled to the
leave to defend the suit?
Partly
Affirmative
3 What Order ? As per final order
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R E A S O N S
AS TO POINT NOS.1 AND 2:
7. It is the case of the plaintiff that he advanced the amount of
Rs.3,25,000/ to the defendant and the defendant agreed to pay interest
at the rate of 2% per month. The plaintiff has stated that the defendant
has executed Demand Promissory Note. The copy of the Demand
Promissory Note ExhibitA is attached along with the plaint. It is
notarized document bearing the signature and photograph of the
defendant. There is mention of interest rate of 2% per month and term
of repayment appears to be 12 months. The defendant has stated that
there was no such Demand Promissory Note executed by him. It was
friendly loan and without any condition of the interest. He has stated
that the loan was to be repaid at monthly installment of Rs.6,500/ each
and accordingly, he paid amount of Rs.1,59,500/. The plaintiff has
agreed that certain amount was paid to him by the defendant and
accordingly, he has produced account extract of SVC Cooperative Bank
Ltd. Which shows that Rs.6,500/ each were deposited to the account
from time to time.
8. The plaintiff has produced on record copy of notice issued
by him to the defendant in which he has stated that the defendant
borrowed the loan amount of Rs.3,25,000/ with interest at the rate of
2% per month and he agreed to pay the same within 12 months. The
reply issued by the defendant to the plaintiff is also produced on record.
It is mentioned by the defendant that the plaintiff provided financial
assistance to him was Rs.3,25,000/ as friendly interest free loan. The
defendant agreed to repay the same by 50 monthly equal installments
of Rs.6,500/. The defendant claimed to have repaid Rs.1,65,500/.
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9. Considering these documents, it is clear that the defendant
admitted part of the claim. The point regarding payment of interest
and execution of Demand Promissory Note is in dispute. As per the case
of the defendant, he has paid amount of 1,59,500/ and therefore, it
appears that the defendant has admitted that still the amount of
Rs.1,65,500/ is due from his to the plaintiff.
10. It is necessary that the point of execution of Demand
Promissory Note and interest needs to be determined in the light of
evidence of the parties. In my considered opinion, the defendant has
placed triable issue in that regard in this Court. The defendant has also
contended that the plaintiff is not having Money Lending Licence. The
plaintiff is not the authorized to charge any interest. This point also
needs to be determined by giving opportunity to both the parties.
11. In the circumstances, I have come to the conclusion that
the defendant is entitled to leave to defend the suit. However, in view
of settled principles, the defendant is required to deposit admitted
amount in the Court which is Rs.1,65,5000/ within 30 days from the
date of this order for making him entitled to defend the suit.
Accordingly, I answer point No. 1 in the affirmative, point No.2 partly in
the affirmative and in answer to point No. 3, I proceed to pass following
order.
O R D E R
1. Leave to defend the suit is granted to the
defendant subject to depositing the amount of
Rs.1,65,500/– in the Court within 30 days from the
date of this order.
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2. If defendant fails to deposit the amount within
stipulated period, the plaintiff shall proceed with the
suit, as if there is no defence.
3. The Summons for Judgment No.232 of 2019 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 08.09.2021 Gr.Mumbai.
Dictated on: 08.09.2021
Typed on : 08.09.2021
Signed on : 08.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09.09.2021 AT 02.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
08/09/2021
Judgment/Order signed by P.O. on 08/09/2021
Judgment/Order uploaded on 09/09/2021
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