Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010105782019
Presented on 16-10-2019
Registered on 22-10-2019
Decided on 05-03-2021
Duration Yrs. M. Days
01 04 20
CNR No. MHCC010105782019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1040 OF 2019
SHANKAR MALKU ANNAREDDY
Age: 39
Occupation :
Address: Room No. 11, Gauri Shankar Nagar,
Masrani Lane, Halav Pool Road,
Kurla West,
Mumbai - 400 070. ...Plaintiff.
V/s.
MAHENDRA RAMKRISHNA KHAMBE
Age: 0
Occupation :
Address: B.M.C, AO, (SWM) Conservancy Dept, Near
Natraj Cinema, M/West Ward, Chembur West
Mumbai -400 071. Link- Gangabai Shirsat, Plot No.
37, Siddhart Colony East Chembur East, Mumbai-400
071. ....Defendant.
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Appearances:
Ld. Adv Mr. Ramesh Jain and Mrs. Kusum Jain 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 : 5th 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 sum of Rs.1,50,000/- (Rs. One Lakhs Fifty
Thousand only) on 25.09.2018. Defendant executed Demand
Promisory note in favour of the plaintiff and promised to pay to the
plaintiff said amount of Rs.1,50,000/- (Rs. One Lakhs Fifty Thousand
only) alongwith interest thereon at the rate of 18% per annum on
demand.
3. It is further contention of the plaintiff that Plaintiff time to
time demanded the money from the defendant but defendant failed and
neglected to pay the said amount and interest.
4. It is further contention of the plaintiff that he demanded
said amount and interest by issuing his Advocate’s letter dated
30.07.2019 to the defendant but in vain.
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5. Defendant served with Writ of Summons on 13.11.2019 as
per baillif report. Defendant did not appear. Hence, suit is proceeded
Ex-parte against the defendant.
6. Plaintiff filed affidavit of claim Exh.4 and compilation of
documents with list Exh.5.
7. I have heard Learned Advocate Mr. Ramesh Jain for the
plaintiff. Plaintiff stated in the affidavit of claim Exh.4 as per averments
of the plaint.
8. Perused Demand Promissory Note Exh.8. It is dated
25.09.2018. An amount of Rs.1,50,000/- (Rs. One Lakhs Fifty
Thousand only) is mentioned therein. Rate of interest is 18% (Eighteen)
per annum mentioned therein. Plaintiff filed original Demand
Promissory Note and plaintiffis Advocate letter dated 30.07.2019. They
are at Exh.6 and 7 respectively.
9. Perused Notice/ Letter of Demand dated 30.07.2019 Exh.7.
Plaintiff demanded the said amount by the said demand notice from the
defendant.
10. 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
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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.
11. 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.
12. 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.
13. 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.
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14. 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. There is nothing on record to
discard the contentions of the plaintiff. Hence plaintiff is entitled for
recovery of amount of Rs.1,50,000/- (Rs. One Lakhs Fifty Thousand
only) from the defendant. 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.1,50,000/- (Rs. One Lakhs Fifty Thousand only) from the defendant
from 25.09.2018 till its full realization. Hence, I proceed to pass the
following order.
ORDER
Summary Suit no. 1040 of 2019 is decreed with costs as under-
1. Defendant do pay a sum of Rs.1,50,000/-(One Lakhs Fifty Thousand
only) to the plaintiff with interest at the rate of 9 (nine) percent per
annum on amount of Rs.1,50,000/- from 25-09-2018 till its full
realisation.
2. Court fee, if any, be refunded to the plaintiff as per rules.
3. Decree be drawn up accordingly.
Judgement dictated and pronounced in open court.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 05/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 05/03/2021
Transcribed on : 06/03/2021
Checked on : 08/03/2021
and Signed on : 08/03/2021.
( 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”
08.03.2021 at 04.45 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 05.03.2021
Judgment/order signed by P.O. on 08.03.2021
Judgment/order uploaded on 08.03.2021
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