Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010100912019
Presented on 01-10-2019
Registered on 01-11-2019
Decided on 08-03-2021
Duration Yrs. M. Days
01 05 7
CNR No. MHCC010100912019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1049 OF 2019
Mr. Dilip Lalji Solanki
of Mumbai an adult,
Indian Inhabitant
Age: 49
Occupation : Singer in orchestra,
Address: Room No. I-Block, K-55,
Central Railway Colony,
Mahalaxmi Chawl Wadi Bundar,
S.V. P. Road, Mumbai-400009. ...Plaintiff.
V/s.
Mr. Manesh Purshottam Makwana
of Mumbai an adult Indian Inhabitant
Age 56 years
Occupation : Service at
Municipal Corporation of Gr. Mumbai.
Employee code No.03814417,
Position No.30030633, Designation Scavenger,
Department hana Kachara Vyavashthappan Khatte,
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Address: Municipal Corporation Of Greater Mumbai,
K/E-Ward, Aazad Road, Andheri East Mumbai-69.
Link - BMC Vasahat Room No. 17, S.L.Matkar Marg,
Elphistone, Mumbai-400 013.
2. Mr. Dayalal Shyamji Makwana,
of Mumbai adult Indian Inhabitant
Age:57 years,
Occupation : Service at
Municipal Corporation of Gr. Mumbai.
Employee code No.03814417,
Position No.30030633, Designation Scavenger,
Department Ghana Kachara Vyavashthappan Khatte,
Address: Municipal Corporation Of Greater Mumbai,
G/North-Ward, Harishchandra Yelve Marg, Mumbai -
400 028. Link - BMC Vasahat Room No. 16,
S.L.Matkar Marg, Elphistone,
Mumbai-400 013.
....Defendants.
Appearances:
Ld. Adv Mr. Mr. Balbheem Patil 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 : 8th 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, he is singer by
profession. Defendant Nos.1 and 2 are friends. Both defendants knew
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that plaintiff is financial fit person. Therefore, defendant No.1 Mr.
Manesh approached the plaintiff for friendly loan help of Rs.4,00,000/-
(Rs.Four Lakhs only) in the month of June, 2017. Plaintiff did not
accept the request of defendant No.1. Hence defendant No.1 came with
defendant No.2 Mr. Dayalal to the plaintiff. Defendant No.2 shown his
willingness to stand as a guarantor for repayment of friendly help which
will be given to the defendant No.1.
3. Plaintiff gave friendly loan of Rs.4,00,000/- (Rs.Four Lakhs
only) to defendant No.1. Defendant No.2 stood as guarantor for the
said loan for defendant No.1. Defendant Nos.1 and 2 executed MOU of
loan agreement. Defendant No.1 agreed to repay the said loan of
Rs.4,00,000/- (Rs.Four Lakhs only) within five months to the plaintiff
commencing from 28.07.2017 to 15.12.2017.
4. Defendants failed to repay the said loan amount.
Defendant Nos.1 and 2 meet the plaintiff. Defendant No.1 issued two
cheques amounting to Rs.3,64,000/- (Rs. Three Lakhs Sixty Four
Thousand only) against the said loan amount of Rs.4,00,000/- (Rs.Four
Lakhs only) in favour of plaintiff. Defendant No.1 promised to pay to
the plaintiff balance amount of friendly help of Rs.36,000/- (Rs.Thirty
Six Thousand only) after encashment of the said two cheques. The said
cheques are cheque bearing No.431462 dated 01.01.2018 drawn on the
Bank of Maharashtra, Sayani Road Branch, Mumbai – 400 025 and
cheque of Rs.28,000/- (Rs. Twenty Eight Thousand only) bearing
No.431468 dated 04.02.2019 drawn on Bank of Maharashtra, Sayani
Road Branch, Mumbai – 400 025. Plaintiff presented cheque
No.431462 for encashment on 17.01.2018. It is dishonoured.
Defendant No.1 told to present the second cheque for encashment.
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Second cheque is also dishonoured. Thereafter, plaintiff issued Notice
of demand dated 12.06.2019 informing the defendants regarding
dishonoured of the said two cheques and thereby claimed friendly loan
from both the defendants. Both defendants are working for gain at
Mumbai therefore, suit be decreed. Both the defendants be directed to
pay to the plaintiff said amount of Rs.Rs.4,00,000/- (Rs.Four Lakhs
only) without interest till the date of filling the suit. Both defendants be
directed to pay interest on the amount of Rs.4,00,000/- (Rs.Four Lakhs
only) after passing decree at the rate of 18% p.a.
5. Suit is proceeded Ex-parte as per Roznama dated 06.1.2020
against both the defendants as both defendants did not remain present
before the Court inspite of service of writ of summons on 14.11.2019
within 10 days from the date of service of writ of summons. Suit is
proceeded Ex-parte against both the defendants as per Roznama/
Noting dated 06.01.2020.
6. Plaintiff filed evidence affidavit Exh.6 and compilation of
documents Exh.7.
7. Plaintiff stated in the evidence affidavit as per averments of
the plaint. Perused original friendly help MOU of loan agreement dated
11.07.2017 Exh.8. It is original document. There is no documents on
record to show that defendant No.2 stood as a guarantor for the said
friendly help given to the defendant No.1.
8 Perused original cheque No.431462. It is of Rs.3,36,000/-
(Rs. Three Lakhs Thirty Six Thousand only). It is issued in the name of
plaintiff. It is dated 01.01.2018. Perused original cheque No.431468. It
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is of Rs.28,000/- (Rs. Twenty Eight Thousand only). It is dated
04.02.2019. It is issued in the name of plaintiff. Both the cheques are
Exhibited as Exh.9 (Colly). Perused demand Notice Exh.10 dated
12.06.2019.
9. 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.
10. 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.
11. 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.
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12. 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.
13. Inspite of service of writ of summons both defendants did
not enter their appearance within 10 days from the date of service of
Writ of Summons. Therefore, the suit is proceeded Ex-parte against
them. There is nothing on record to discard the contentions of the
plaintiff.
14. There is no documents on record to show that defendant
No.2 stood guarantor for the friendly help given to the defendant No.1.
Therefore, I am of the opinion that defendant No.2 cannot be directed
as prayed for.
15. Defendant No.1 is liable to pay said amount of
Rs.4,00,000/- (Rs. Four Lakhs only) to the plaintiff. Considering the
transactions between the parties, 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.4,00,000/- (Rs. Four Lakhs only) from the defendant No.1 from
the date of Judgment till its full realization. Hence, I proceed to pass
the following order:
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ORDER
Summary Suit no. 1049 of 2019 is partly decreed with costs as under-
1. Defendant no. 1 Manesh do pay a sum of Rs. 4,00,000/-(Four Lakhs
only) to the plaintiff with interest at the rate of Rs. 9 percent per
annum from the date of judgement i.e. from 08-03-2021 till its full
realisation.
2. Suit against defendant no.2 is dismissed.
3. Court fee if any be refunded to the plaintiff as per rule.
4. Decree be drawn up accordingly.
5. Judgement dictated and pronounced in open Court.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 08/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 08/03/2021
Transcribed on : 17/03/2021
Checked on : 19/03/2021
and Signed on : 19/03/2021.
( 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”
22.03.2021 at 12.30 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 08.03.2021
Judgment/order signed by P.O. on 19.03.2021
Judgment/order uploaded on 22.03.2021
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