Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 139/19. 1 Ex-parte Judgment.
MHCC010106182019
Presented on : 21-08-2019
Registered on : 19-10-2019
Decided on : 06-03-2021
Duration : 1 years, 6 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 139 OF 2019
Exh.23.
Smt. Urmila W/o. Jaiprakash Mishra, )
Age 51 years, Occ. Housewife )
Residing at 409-C, )
Kadri Mansion, House no.10, )
S.V.S. Road, Prabhadevi, )
Mumbai – 400025 )...Plaintiff
Versus
Shri Gangadharan G. Pujari, ) (Deleted as deceased)
Age 64 years, Occ. Business )
R/at: Flat no.9, Bldg.no.14, )
3rd floor, Navjeevan CHS, )
Grant Road (E) Mumbai – 400011 )
And having permanent Address )
Village: PallamUdma, )
142(8) Pt – 2, Items Udma Village, )
Taluka Hosdurg, Dist. Kasaragod, )
State: Kerala )
1(a) Mrs. Shakuntala G. Pujari )
(b) Mr. Manoj G. Pujari )
(c) Mr. Mahesh G. Pujari )
(d) Mr. Vishal G. Pujari )
R/A – Manoj Niwas, Pallam, Udama )
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Comm.Suit No. 139/19. 2 Ex-parte Judgment.
142/8 Udama Village, Taluka Hosdurg )
Kasargod, Kerla – 671319 )...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 6th MARCH, 2021.
Mr. Krishna Mishra, Advocate for Plaintiff.
None for Defendants No.1(a) to (d). (Ex-parte).
JUDGMENT (EX-PARTE)
This is a suit for recovery of Rs.25,00,000/- (Rupees
Twenty-five Lakhs Only) with interest at the rate of 12% p.a. The suit is
based on agreement and cheques.
Plaintiff’s case is narrated as follows :
2. Plaintiff is resident of Prabhadevi, Mumbai. Defendant is
owner of a gala/shop known as ‘National Apparels’ situated at First
Floor, 1/1887, Lal Chimny Compound, Agripada, Byculla Division,
Mumbai-11. It is admeasuring 225 sq.ft. Defendant has shown his keen
interest to sell the impugned shop. In view of agreement to sale
executed on 06/08/2011, defendant has agreed to execute the sale
deed for the consideration of Rs.25,25,000/- (Rupees Twenty-five Lakhs
Twenty-five Thousand Only) in favour of plaintiff. Accordingly, it was
notarized on 02/09/2011. As mentioned in the agreement to sale and
independent receipt, plaintiff has paid the amount of Rs.25,00,000/-
(Rupees Twenty-five Lakhs Only) to the defendant. It was agreed to
pay remaining Rs.25,000/- (Rupees Twenty-five Thousand Only) upon
receipt of possession by the plaintiff. Defendant was avoiding to
execute the sale deed and to handover the possession of the suit
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Comm.Suit No. 139/19. 3 Ex-parte Judgment.
property. Plaintiff came to know interest of defendant to dispose off the
suit property to third party. Therefore, plaintiff issued a legal notice
dated 08/02/2017 to revoke the agreement dated 02/09/2011.
Plaintiff has called the defendant to refund the amount of
Rs.25,00,000/- (Rupees Twenty-five Lakhs Only) with interest at the
rate of 12% p.a. It is continued that plaintiff issued second legal notice
on 25/04/2018. Defendant has replied the notice on 06/06/2018.
Defendant has admitted the amount received by him. Defendant has
handed over two cheques to repay the amount respectively for the
amount of Rs.22,00,000/- (Rupees Twenty-two Lakhs Only) and
Rs.3,00,000/- (Rupees Three Lakhs Only). However, both cheques were
dishonoured with a memo ‘Refer to drawer’. Despite repeated demand
and a legal notice, defendant is failed to repay the amount. Hence, this
suit.
3. It is reported to the plaintiff that original defendant is no
more. Hence by filing chamber summons, plaintiff has impleaded L.R.s
of defendant no.1 as defendant nos.1(a) to (d). In view of roznama
dated 30/01/2020, defendant nos.1(a) to (d) are failed to appear
despite due service of notice. Perused service affidavit vide Exh.5. All
defendants have refused to accept the summons sent by RPAD. Hence,
suit is proceeded ex-parte against the defendants.
4. In support to the plaint, plaintiff has examined only one
witness. Plaintiff has closed the evidence vide pursis Exh.18. PW 1
Jaiprakash Mishra deposed before the Court vide Exh.8. According to
plaintiff, in view of agreement to sale dated 06/08/2011, defendant has
agreed to execute the sale deed of suit property i.e. gala/shop known as
‘National Apparels’ situated at Chimny Compound, Agripada, Mumbai.
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Comm.Suit No. 139/19. 4 Ex-parte Judgment.
It was agreed to execute the sale deed of the suit property for
consideration of Rs.25,25,000/-(Rupees Twenty-five Lakhs Twenty-five
Thousand Only). According to PW 1, as mentioned in para 4 of chief
examination, plaintiff has paid the sum of Rs.5,00,000/- (Rupees Five
Lakhs Only) by cheque of Saraswat Bank and cash of Rs.17,00,000/-
(Rupees Seventeen Lakhs Only) to the defendant. On perusal of
endorsement on agreement to sale and receipt annexed with Exh.11,
plaintiff has paid in total amount of Rs.25,00,000/- (Rupees Twenty-five
Lakhs Only) to the defendants.
5. PW 1 continued that considering the intention of defendant
to handover property to the third person, plaintiff has revoked the
agreement to sale. Therefore, defendant has handed over the cheques
of Rs.22,00,000/- (Rupees Twenty-two Lakhs Only) vide Exh.13 and
Rs.3,00,000/- (Rupees Three Lakhs Only) vide Exh.14. Plaintiff has
deposited the two cheques in the bank, however, both cheques were
dishonoured as per memo annexed with the cheques. Therefore,
plaintiff has issued the legal notice on 25/04/2018. Defendant has
replied the notice on 06/06/2018 vide Exh.16. It is admitted by the
defendant about receipt of payment from the plaintiff. It was assured
by the defendant to hand over the shop/gala to the plaintiff. It is added
that impugned shop has been encroached by some people and
defendant was in process to obtain possession of the same.
6. Considering entire facts in total, it appears that plaintiff has
disbursed the payment of Rs.25,00,000/- (Rupees Twenty-five Lakhs
Only) to the defendant. Plaintiff has received the assurance in view of
Exh.13 and 14. Defendant has admitted the payment and assured the
possession of impugned shop vide Exh.16. In short, plaintiff has proved
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Comm.Suit No. 139/19. 5 Ex-parte Judgment.
her case. In result, it deserves to decree the suit. Hence, the order :
- ORDER -
1. Suit is decreed with cost.
2. Defendant nos.1(a) to (d) shall pay, jointly and severally,
the amount of Rs.25,00,000/- (Rupees Twenty-five Lakhs
Only) to the plaintiff with interest @ 12% p.a. from the
date of suit till realization, within two months from the
date of decree.
3. Decree shall be drawn accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 06/03/2021. Mumbai.
1. Dictated on : 06/03/2021.
2. Transcribed on : 09/03/2021.
3. Signed on : 12/03/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/03/2021. 1.28 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/03/2021.
Judgment/Order signed by P.O. on 12/03/2021.
Judgment/Order uploaded on 12/03/2021.
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