Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010101622019
Filed on :04.10.2019
Registered On :20.11.2019
Decided on :02.02.2022
Duration : Y-02/M-04/D-00
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 1139 OF 2019
IN
Exhibit-04
CNR No. MHCC01-010162-2019
Rameshkumar Babulal Shah
aged about 59 years
Of Mumbai, an adult Indian Inhabitant
having his address at 12, Kakad Wadi,
Ground Floor, Mogre Building, V.P.Road,
Bombay-400 004. ... Plaintiff
V/s.
1. Mushtaq Ali Ahmed Ali Sayed
(age not known)
an adult Indian Inhabitant, working for gain
with Indian Government Mint, Cutting
Department, S.B. Road, Fort,
Mumbai- 400 001. and residing at Block No.
144/5292, C.G.S Colony, Sector-7,
Antop Hill, Mumbai- 400 037.
2. Pradeep J. Sakharkar
(Full name and age Not known)
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of Mumbai an adult Indian Inhabitant,
working for gain with India Government
Mint, S.B.Road, Fort, Mumbai- 400 001.
and residing at Room No.60 , Chinwala
Building, 2nd Floor, Navroji Hill Road No.7,
Dongri, mumbai- 400 009.
... Defendants
SUIT FOR RECOVERY OF MONEY
Appearance:-
Mr. Divya Jain Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 02.02.2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The defendant no.1 on dtd.19.04.2018 for valuable consideration
of Rs.90,000/- received from plaintiff, drew a bill of exchange directing
thereby, defendant no.2 to pay to the plaintiff or Order at Mumbai a
sum of Rs.90,000/- on demand. Said bill of exchange was accepted and
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delivered by defendant no.2 to the plaintiff on the same day. The
amount of Rs.90,000/- was advanced to the defendants. Accordingly,
the defendants executed the bills of exchange in favour of plaintiff. The
plaintiff thereafter presented demand bill of exchange to the
defendants for payment of balance sum of Rs.90,000/-. The defendants
dishonored the demand of bill of exchange by non payment. Therefore,
the defendants are jointly and severally liable to pay the balance sum of
Rs.90,000/- alongwith interest at the rate of 18% p.a. The plaintiff
issued letter/notice through advocate on 20.8.2019 to the defendants
calling upon them to pay the outstanding amount alongwith accrued
interest but the defendants failed to comply with said requisition. The
plaintiff averred that the defendants are liable jointly and severally to
pay the outstanding amount of Rs.1,12,192/- as per the Memo of
Particulars.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.1,12,192/- as per the Memo of
Particulars to the plaintiff and further interest at the rate of 18% p.a
from the date of suit till its realization. Hence, this suit.
4. The suit summons were duly served on the defendants nos.
1 and 2. The defendants no.1 and 2 failed to appear though served
with the suit summons. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment against
defendant nos. 1 and 2.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
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Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendant nos. 1 and 2?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,12,192/- with
interest
@ 18% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.3 i.e the list of documents:
Sr.
No.
Description of documents Exhibits
1 Bill of Exchange dated 19.04.2018
of Rs.1,00,000/-
Exh. 4
2 The Plaintiff’s Advocate’s letter
dated 20.8.2019 alongwith the
courier records in respect thereof.
Exh. 5
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The documents produced on record by the plaintiff shows
that the defendants received the amount of Rs.90,000/- from the
plaintiff drawing bill of exchange directing thereby defendant no.2 to
pay to the plaintiff or order a sum of Rs.90,000/- on demand and said
bill of exchange has been accepted and delivered by the defendant no.2
to the plaintiff. Further, it reveals from the record that said transaction
took place on dtd.19.4.2018, the notice/letter of demand was issued to
the defendants on dtd.20.8.2019 and the suit is filed on 4.10.2019. As
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such, the plaintiff’s claim in the suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-3
goes to establish that plaintiff has given amount of Rs.90,000/- to the
defendants on bill of exchange. Repayment is not made by the
defendants. The plaintiff is claiming Rs.1,12,192/-, which is the
amount calculated with interest at the rate of 18% p.m till the date of
filing of the suit. Said amount is not repaid by any of the defendants.
Therefore, defendant nos. 1 and 2 are liable jointly and severally to pay
the outstanding amount of Rs.1,12,192/- to the plaintiff. In this
background, I have arrived at the conclusion that the plaintiff is entitled
to recover sum of Rs.1,12,192/- from the defendants jointly and
severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.1,12,192/- and said amount is calculated alongwith
with interest at the rate of 18% p.m till the filing of the suit. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 18% per annum
on the principal amount. As per section 34 of the Code of Civil
Procedure the rate of interest may exceed 6% per annum, if the
transaction is commercial and there is no contract pertaining to the
same between the parties. In the present case the transaction is a
commercial one and there is contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
defendant is liable to pay the interest at the rate of 18% p.a. Therefore,
I hold, the rate of interest at the rate of 18% per annum would be just
and proper to be awarded on the principal sum of Rs.90,000/- . Hence,
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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 the plaintiff is entitled to recover Rs.1,12,192/- from the defendant
nos. 1 and 2 jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.90,000/- from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendant nos. 1 and 2. Hence, in answered to point no.2, I
proceed to pass the following order.
ORDER
1. The defendant nos.1 and 2 shall pay Rs.1,12,192/-
(Rs. One Lakh Twelve Thousand One Hundred Ninety
Two Only) to the plaintiff jointly and severally, with
interest at the rate of 18% per annum on the principal
sum of Rs.90,000/- from the date of filing of the suit
till its realization.
2. The defendant nos. 1 and 2 do pay costs of the suit to
the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :02.02.2022 Gr. Bombay
Dictated on :02.02.2022
Typed on :02.02.2022
Signed on :02.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/02/2022 3.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
02/02/2022
JUDGMENT/ORDER signed by
P.O.on
02/02/2022
JUDGMENT/ORDER uploaded on 02/02/2022
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