Final Order 1

Order Details: Other
Pdf Text: IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 244 OF 2019
IN
SUMMARY SUIT NO. 603 of 2019
(CNR NO.MHCC01-010237-2019)
Smt. Prafulla Prakash Shah ]
Age about 67 years, ]
Occupation: Housewife, ]
T-1, 3303, Crescent Bay, ]
Jerbai Wadia Road, Bhoiwada, Parel, ]
Mumbai-400 012. ]...Plaintiff
V/s.
Mr Bipin Manilal Jhaveri ]
Age and full name not known ]
Occupation: Business ]
202/203, Span Land Mark, ]
Andheri-Kurla Road, ]
Andheri (East), Mumbai-400 093. ]...Defendant
Appearance:-
Ld.Advocate Mr. Abhishek Nikharge for the plaintiff.
Ld. Advocate Ms. Sumedha Sawant for the defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 15/04/2024.
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ORDER
( Dictated and pronounced in open Court)
01. The plaintiff has filed this Summons of Judgment against
defendant on 04/10/2019. Defendant failed to file reply to the
summons for judgment therefore, order came to be passed on
19/01/2023 to proceed without reply against the defendant. The
plaintiff has filed original documents on record.
02. It is submitted on behalf of the plaintiff that she is the
wife and legal heir of deceased Prakash Shah who expired on
08/08/2017. As per the plaintiff, deceased Prakash had given friendly
loan of Rs. 25,00,000/- to the defendant on 28/06/2013 and on the
same day defendant had executed promissory note in favour of
Prakash. The defendant had agreed to repay said amount with the rate
of interest 24% p.a. The defendant paid an amount of Rs. 1,52,000/-
towards interest on 21/02/2014 for the period 29/06/2013 to
31/03/2024. Further, on 13/02/2015, defendant had confirmed
principal balance of Rs. 25,00,000/- and interest amount of Rs.
1,52,000/- paid upto 31/03/2014. Again on 25/05/2016, defendant
had executed promissory note in favor of deceased and confirmed
principal amount of Rs. 25,00,000/-. As defendant failed to repay the
loan amount, letter dated 10/10/2018 by RPAD was issued to the
defendant and called upon him to pay principal amount and interest
from 01/04/2014 to 09/10/2018, total amounting to Rs. 35,57,808/-.
The defendant though, received the said letter, failed to reply the same
and even, failed to repay outstanding amount. Therefore, plaintiff is
entitled to claim principal amount along with interest at the rate of
12% p.a. from the defendant.
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03. As defendant had not filed reply, summon of judgment is
proceeded without reply.
04. Perused Summons for judgment and record as well as
original documents filed by the plaintiff. The plaintiff in order to
support her contention that she is legal heir of deceased Prakash and
she is entitled to recover amount, she has filed verified copy of probate
of the last will of deceased Prakash vide list Exh. 3/1. On perusing said
document, it appears that plaintiff is sole executrix as per last will of
deceased Prakash. Even, in para 7 of said document, it is specifically
mentioned the names to whom deceased had given loan. Further,
plaintiff is nominated as sole beneficiary to receive interest and
principal amount of loan. The name of defendant is mentioned as
serial No.2 wherein it is specifically mentioned that loan of
Rs. 25,00,000/- was given to the defendant. Plaintiff to substantiate
her contention that an amount of Rs. 25,00,000/- was given to the
defendant, she has also filed promissory Note dated 28/06/2013 vide
list Exh.3/2. On perusing said promissory note, it appears that
defendant had received loan of Rs. 25,00,000/- and he agreed to repay
it with interest at the rate of 12% p.a.
05. As per confirmation of account dated 13/02/2015 filed
vide list Exh.3/3, it appears that defendant had confirmed the
principal amount of Rs.25,00,000/- and interest amount of
Rs.1,52,000/- paid for the period 21/02/2014 to 31/03/2014. Further,
it appears that defendant had executed promissory note on
28/05/2016 for an amount of Rs. 25,00,000/- filed on record vide list
Exh. 3/4. On perusing promissory note, it appears that defendant had
received Rs. 25,00,000- and agreed to repay with interest at ther ate of
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12% p.a. Thus, it appears that plaintiff had brought sufficient material
and document on record to show that defendant had received an
amout of Rs. 25,00,000/- on 28/06/2013 and on the said amount
defendant had paid interest of Rs. 1,52,000/-. Further, said loan is
confirmed.
06. As per plaintiff, defendant had failed to repay the loan
amount and interest from 01/04/2014 till filing of the suit. Therefore,
plaintiff had issued letter dated 11/10/2018 to the plaintiff and called
upon to pay the principal amount alongwith interest i.e. total
amounting to Rs. 35,33,973/-. Plaintiff has filed office copy of said
letter on record vide list Exh.3/5. Further, to prove that the said letter
has been received by the defendant has filed on record letter dated
20/11/2018 issued to the post office and reply given by the post office
on 14/12/2018. The said documents are filed on record vide list
Exh. 3/5. On perusing said documents, it appears that the notice dated
11/09/2018 is received by the defendant on 12/10/2018. Further,
plaintiff has again issued notice on 10/10/2018 to the defendant
which is received by him as it appears from postal AD Card which is
filed on record vide list Exh. 3/7. Though, defendant has appeared in
the matter, he has not filed reply to summons for judgment.
07. Thus, it appears that plaintiff has proved that deceased
Prakash has advanced an amount of Rs. 25,00,000/- to the defendant
as friendly loan and defendant had executed promissory note Exh. 3/2
and 3/4 and agreed to repay the said amount with 12% p.a. As
discussed above, though defendant appeared in the matter failed to
file reply to the summons for judgment and deny the contentions of
the plaintiff. Therefore, the contentions of the plaintiff has remained
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unchallenged and it is presumed that defendant has admitted the
contents of the plaintiff. Therefore, I am of the view that plaintiff has
proved her contention that defendant had borrowed friendly loan of
Rs. 25,00,000/- and failed to repay it with interest. Therefore, plaintiff
is entitled to recover an amount of Rs. 25,00,000/- towards principal
and interest for the period 01/04/2014 to 03/05/2019
Rs. 12,26,301/- (Rs. 12,26,301.15/- rounded of as Rs. 12,26,301/-)
total amounting to Rs. 37,26,301/-.
08. So far as prayer of interest on the said amount is
concerned, the plaintiff has claimed 12% p.a. interest on the said
amount. However, I am of the view that the same is excessive as
compared to rate of interest of Nationalized Banks. Therefore, having
regard to the provision of section 34 of the Civil Procedure Code, I am
of the view that granting the interest at the rate of 6% per annum. on
the principal amount would be just, proper and reasonable. Hence, I
hold that the plaintiff is entitled to further interest at the rate of 6%
per annum on the principal amount, from the date of filing the suit till
its full realization. Hence, I proceed to pass following order.
O R D E R
1] Summons for Judgment No. 244 of 2019 is allowed.
2) The defendant shall pay an amount of Rs. 37,26,301/- (Rupees
only) to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
amount of Rs. 25,00,000/- at the rate of 6% per annum from
04/05/2019, the date of filing of suit till its full realization.
4) In view of above, Summary Suit No.603 of 2019 is disposed of.
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5) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
6) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 15/04/2024 Court Room No.81
Dictated on: 15/04/2024
Corrected & signed on: 16/04/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/04/2024 at 2.00 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
15/04/2024
JUDGMENT/ORDER signed by P. O. on 16/04/2024
JUDGMENT/ORDER uploaded on 22/04/2024
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