Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010101132019
Presented on : 03-10-2019
Registered on : 22-11-2019
Decided on : 22-03-2021
Duration : 1 years, 5 months, 19 days
EXH. 11
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1148 OF 2019
(UNDER ORDERXXXVII OF C.P.C. 1908)
Mr. Santosh Nagurao Gadge
of Mumbai an adult Indian Inhabitant,
aged 27 years, Occupation: Business at
Roo no.4, N.M. Gadge Chawl, Makadwala
Compound, Jai Shankar Chowk,
HalavPool Road, Kurla (W)
Mumbai – 400 070. ...Plaintiff.
V/s.
Mr. Bipin Sabhajit Singh
Of Matunga West Mumbai, an adult, Indian
Inhabitant, Aged 37 years, Occupation
Service, Having his office address at
E.M.U. P.D.H. (Mech fitter) Employee
No. 01765929, Matunga work shop,
Matunga West Mumbai – 400 019. And also
having his Residence address at 6-D.K.
Mishtri Chawl, Masrani Lane, Halav
Pool, Kurla west Mumbai – 400 070.
....Defendant.
Appearances:
Ld. Adv Shri Balbhim S. Patil for plaintiff.
None present for defendant.
Suit proceeded ex-parte against defendant.
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CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.13)
DATED : 22nd 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 lent an
advanced to the defendant the sum of Rs.3,00,000/- (Rs. Three Lakhs
only) on 20-12-2017 in cash without interest. Defendant executed
Demand Promisory note in favour of the plaintiff.
3. Plaintiff on several occasion orally demanded the money
from the defendant but defendant failed and neglected to pay the same.
Plaintiff through an Advocate sent notice to the defendant and called
upon defendant to pay the said amount with interest but defendant
failed and neglected to pay the said amount.
4. Defendant served with Writ of Summons. Writ of Summons
are served upon the defendant on 18.12.2019. He did not appear.
Therefore, suit is proceeded Ex-parte against the defendant as per
Roznama / Noting dated 27-01-2020.
5. Plaintiff filed evidence affidavit vide Exh.06 and
compilation of documents with list Exh.07.
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6. I have heard Learned Advocate Mr. Balbhim Patil for the
plaintiff. Plaintiff stated in the evidence affidavit Exh.06 that
defendant approached him on 20-12-2017 for a loan amount of
Rs.3,00,000/- on without interest. He had advanced in cash amount of
Rs.3,00,000/- (Rs. Three Lakhs only) on the same date. Defendant
executed Demand Promissory Note on the same date. He demanded
loan amount and interest repeatedly. Defendant failed to pay even
interest amount apart from the loan amount. He issued demand Notice
through his advocate dated 07-05-2018 and demanded the amount.
Defendant did not paid the said amount to the plaintiff. Defendant
after service of writ of summons did not appear.
7. Perused Demand Promissory Note Exh.09. An amount of
Rs.3,00,000/- (Rs. Three Lakhs only) is mentioned therein. Demand
Promissory Note is original.
8. Perused Demand Notice dated 07-05-2018 Exh.09. Plaintiff
demanded the said amount by the said demand notice from the
defendant.
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.
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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.
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 defendant did not
enter his appearance within 10 days from the date of Writ of Summons,
therefore, the suit is proceeded Ex-parte. 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 as the defendnat did not appear.
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There is nothing on record to discard the contentions of the plaintiff.
Hence, plaintiff is entitled for recovery of amount of Rs.3,00,000/- (Rs.
Three Lakhs only) from the defendant. The plaintiff prayed to direct to
defendant to pay interest from the date of decree. 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.3,00,000/- (Rs. Three Lakhs only) from the
defendant from the date of judgement i.e. 22-03-2021 till its full
realization. Hence, I proceed to pass the following order.
ORDER
Summary Suit no. 1148 of 2019 is decreed with costs as under-
1. Defendant do pay a sum of Rs.3,00,000/-(Three Lakh only) to the
plaintiff with interest at the rate of 9 (nine) percent per annum
on amount of Rs.3,00,000/- from the date of judgement i.e. from
22-03-2021 till its full realisation.
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.: 22/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 22/03/2021
Transcribed on : 22/03/2021
Checked on : 22/03/2021
and Signed on : 22/03/2021.
( 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”
23.03.2021 at 03.40 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 22.03.2021
Judgment/order signed by P.O. on 22.03.2021
Judgment/order uploaded on 23.03.2021
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