Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit 844/2021
MHCC010106492019 Presented on : 18/10/2019
Registered on : 09/12/2019
Decided on : 20/07/2022
Duration : 02Y/07M/11D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.844/2021
Ms. Deepti Vijaykumar Nayak
Age 42 years, Occ: Business,
Residing at B/12, Star Apartment, S.V.
Road, Borivali(W), Mumbai400 092.
…PLAINTIFF
VERSUS
1. Dr. Sneha Sushilkumar Chomal
Age:Not known, Occ: Not known
Flat No.B/1304, 13th floor, Pancharatna
Co.Op. Hsg. Soc. Ltd., Building NO.59,
New Mhada Tower, Chhatrapati Shivaji
Raje Complex, Charkop, Kandivali
(West), Mumbai 400 067.
Alternate address.
Dr. Sheha Chomal
2nd Floor, Shivneri Apt., Near Mini
Cooper Showroom, off. Juhu Tara Road,
Juhum Santacruz (W), Mumbai400 054
And
Dr. Sneha Chomal C/o. Hamit Sehmi
Add: Vuclip.
247 Park, Home Town Opp to everest
Masala, Vikhroli(W), LBS Rd. Chandan
Nagar, Vikhroli (W), Mumbai,
Maharashtra 400 083.
Smt.Shraddha Jadhav h/f. Shri. S.M. Suryawanshi learned
Advocate for the plaintiff.
Defendant exparte.
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2 Comm. Suit 844/2021
CORAM : HIS HONOUR JUDGE SHRI.N.P.TRIBHUWAN (C.R.NO.32)
EXPARTE J U D G M E N T
(Delivered on 20/07/2022)
Plaintiff has filed this suit for recovery of principal sum of
Rs.9,05,000/ with interest @ 18% p.a. from the date of suit till
realization of entire amount.
2. It is case of plaintiff that husband of plaintiff and defendant
are friends. Therefore, there are friendly relationship between plaintiff
and defendant. Defendant offered the plaintiff a partnership in her
business of export of clothes. Offer given by defendant was accepted by
plaintiff and thereafter defendant has prepared Draft Memorandum of
Understanding (MOU) through email. Plaintiff suggested some
corrections in the said draft of MOU but defendant Defendant served
the copy of affidavit of evidence on plaintiff not response for the same.
Defendant assured the plaintiff that she will execute and signed the
MOU within short period. Plaintiff relied on the words of defendant.
After 15 months plaintiff decided to step down from the partnership i.e.,
in September 2017.
3. While pursuing to execute the said MOU, defendant
requested the plaintiff to arrange funds for said business and requested
to deposit the said funds in her bank account No.343568338 in Canara
Bank of India. Defendant asked plaintiff to give cheque in the name of
Vidya Chomal. Accordingly plaintiff transferred sum of Rs.11,05,000/
during 28/06/2016 to 21/09/2017 through RTGS/NEFT. Plaintiff has
also transferred some amount through her friend’s account. Plaintiff
also transferred some amount in other account of defendant on the
request of defendant. After transferring the aforesaid amount, on many
occasion plaintiff requested the defendant to execute the MOU. She also
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3 Comm. Suit 844/2021
sent emails for the same to defendant. There was exchange of messages
on whatsapp between them in this regard.
4. Defendant avoided to execute MOU and also not disclosed
any transaction of said business. Hence, plaintiff came to the conclusion
that defendant is trying to cheat her. Therefore, she lodged complaint
against defendant in police station in April 2018. After persistent follow
up the defendant has paid Rs.2,00,000/ to plaintiff.
5. Plaintiff issued legal notice to defendant on 18/04/2019.
Inspite of receipt of the said notice, defendant did not repay the
amount of Rs.9,05,000/ . Hence, plaintiff filed this suit.
6. Inspite of service of suit summons, defendant remained
absent and hence, suit proceeded exparte against her.
7. In view of above facts following points arise for
determination of this court and I recorded findings thereon for the
reasons stated as under.
POINTS FINDINGS
1. Whether plaintiff proved that she has given
sum of Rs.11,05,000/ to defendant
between 28/06/2016 to 18/01/2017
towards the partnership in business?
…Yes,
Rs.7,05,000/
2. Whether plaintiff proved that sum of Rs.
9,05,000/ is due and payable from
defendant?
…Yes,
Rs.7,05,000/
3. Whether plaintiff is entitled for interest @
18% p.a. from the date of suit till
realization thereof?
…Yes, @18% p.a.
4. What order and decree? …As per final order
REASONS
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AS TO POINT Nos.1 TO 3:
8. Heard learned counsel of plaintiff. Plaintiff has examined
herself. PW1/plaintiff reproduced all content of plaint in her chief
examination. Her evidence is supported by documentary evidence
(Exh.13 to 19).
9. Documentary evidence mentioned in para supra is : email
dtd. 06/06/2016, 25/06/2016, 08/07/2016, 09/07/2016, letter
dtd.04/02/2021 issued by the HDFC Bank, notice dtd.18/04/2019,
postal receipts and RPAD envelopes.
10. Letter dtd.04/02/2021 issued by HDFC Bank to plaintiff
shows that between 28/07/2016 to 21/09/2017 defendant has
transferred Rs.3,43,000/ in the account of defendant through seven
cheque of Rs.49,000/ each. Plaintiff also transferred Rs.3,62,000/.in
the account of defendant though NEFT. Thus, there are entries of total
amount of Rs.7,05,000/ . It seems that out of total amount of
Rs.9,05,000/ the entries of Rs.7,05,000/ found in the account
statement. Plaintiff has not produced any evidence about the remaining
2,00,000/ rupees. So far as the email is concerned, plaintiff has not
produced certificate u/s. 65B of Evidence Act. Therefore, printout of
email cannot be considered. As far as MOU is concerned, it was not
finalized and signed by parties. Therefore, the same cannot be read in
evidence.
11. Evidence of PW1 remained unchallenged. Her evidence is
supported by documentary evidence. There is no reason to disbelieve
her testimony to the extent of due amount of Rs.7,05,000/ as
contended in para supra. Hence, plaintiff succeeded to establish that
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5 Comm. Suit 844/2021
defendant is liable to pay due amount of Rs.7,05,000/. Therefore,
plaintiff is entitled for recovery of the said amount.
12. On the point of rate of interest in commercial transaction,
Hon’ble Delhi High Court in a case of Sasumorov Enterprises Private
Limited V/s. Odeon Builders Pvt. Ltd, CS(Comm) 927/2016
dtd.16/11/2018, observed and held, “as far as the claim of the plaintiff
for the relief of pre suit, pendente lite and future interest @24% p.a. is
concerned, though undoubtedly the invoices of the plaintiff on
defendant contain a clause to the said effect but considering the
prevalent rates of interest, even quacommercial transactions the claim
for interest @ 24% p.a. is found to be excessive. The plaintiff is found
entitled to pre suit interest @ 15% p.a., from expiry of 60 days of the
date of each of the invoices and till the date of institution of the suit and
is avoided interest pendente lite and future @ 9% p.a.”
13. In view of aforesaid case law, considering entire facts and
prevailing market rate of interest, it is desirable to grant interest @18%
p.a. Hence, as per the said rate plaintiff is entitled for interest @ of 18%
p.a. from date of filing of suit till realization of amount. Thus, I
answered point Nos. 1 to 3 as above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to plaintiff the amount
of Rs.7,05,000/with interest @ 18% p.a. from the date
of suit till realization of entire amount.
3. Decree be drawn up accordingly.
Date :20/07/2022.
(N.P. TRIBHUWAN)
Judge, City Civil Court, Mumbai.
C.R.No.32
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Dictated on : 20/07/2022.
Checked on : 20/07/2022.
Signed on : 20/07/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20/07/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 20/07/2022.
Order signed by P.O. on 20/07/2022.
Order uploaded on 20/07/2022.
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