Final Order 3

Order Details: Ex-parte Judgement
Pdf Text: MHCC010106832019
Presented on 17-10-2019
Registered on 19-11-2019
Decided on 10-03-2021
Duration Yrs. M. Days
01 04 24
CNR No. MHCC010106832019
EXH. 10
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1121 OF 2019
{Under Order XXXVII of C.P.Code (1908)}
Yallapa Pochchapa Jadhav,
age 30 years,
carrying on business at Room No.78,
Makadwala Chawl, Jay Shankar Chowk,
Masarani Lane, Halav Pul, Kurla (W),
Mumbai – 400 070. ...Plaintiff.
V/s.
Ashok Shamji Zapadia
Adult, working for gain with
B.M.C. Office, K/East Ward, E.C.No.04071372
Dept. Consy; Azad Road, Gundavali,
Andheri (E), Mumbai 400 069 and residing at
B.M.C. Chawl No.200, Juhu Lane,
Near Ram Mandir, C.D. Barfiwala Road,
Andheri (W), Mumbai 400 058. ....Defendant.
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Appearances:
Ld. Adv Mr. Rajesh Patil 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 : 10th 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
and advanced to the defendant the sum of Rs.2,00,000/- (Rs. Two
Lakhs only) on 10-11-2016 in cash with interest at the rate of 18%
(Eighteen) per annum. Defendant executed Demand Promisory note in
favour of the plaintiff.
3. Plaintiff on several occasion orally demanded the money
from the defendant but defendant failed and neglected to pay the same.
Plaintiff through an Advocate sent notice to the defendant and called
upon defendant to pay the said amount with interest but defendant
failed and neglected to pay the said amount.
4. Defendant served with Writ of Summons. Writ of
Summons are served upon the defendant on 03-12-2019. He did not
appear therefore, suit is proceeded Ex-parte against the defendant as
per Roznama / Noting dated 23-01-2021.
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5. Plaintiff filed affidavit of claim vide Exh.6. He also filed
documents with list Exh.7.
6. I have heard Learned Advocate Mr. Rajesh Patil for the
plaintiff. Plaintiff stated in the affidavit of claim that defendant
approached him on 10-11-2016 for a loan amount of Rs.2,00,000/- on
interest at the rate of 18% (Eighteen) per annum. He had advanced in
cash amount of Rs.2,00,000/- (Rs. Two Lakh only) on the same date.
Defendant executed Demand Promissory Note on the same date. He
demanded loan amount and interest repeatedly. Defendant failed to
pay even interest amount apart from the loan amount. He issued Notice
through his advocate dated 28.09.2019 and demanded the amount. He
did not receive any reply or amount from the defendant. Defendant
after service of writ of summons did not appear.
7. Perused Demand Promissory Note Exh.8. An amount of
Rs.2,00,000/- (Rs. Two Lakhs only) is mentioned therein. Rate of
interest is 18% (Eighteen) per annum mentioned therein. Demand
Promissory Note is original.
8. Perused Notice of Demand dated 28.09.2019 Exh.9.
Plaintiff demanded the said amount by the said demand notice from the
defendant.
9. 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
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deemed to be admitted and the plaintiff shall be entitled to a decree for
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.
10. 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.
11. 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.
12. 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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13. 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. In view of provisions of Order
37 Rule 2 Sub-Rule 3 of Code of Civil Procedure, the allegations in the
plaint shall be deemed to be admitted as the defendnat did not appear.
There is nothing on record to discard the contentions of the plaintiff.
Hence plaintiff is entitled for recovery of amount of Rs.2,00,000/- (Rs.
Two Lakhs 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.2,00,000/- (Rs. Two Lakhs only) from the defendant from 10-12-
2016 till its full realization. Hence, I proceed to pass the following
order.
ORDER
Summary Suit no. 1121 of 2019 is decreed with costs as under-
1. Defendant do pay a sum of Rs.2,00,000/-(Two Lakhs only) to the
plaintiff with interest at the rate of 9 (nine) percent per annum on
amount of Rs.2,00,000/- from the date of 10-12-2016 till its full
realisation.
2. Court fee, if any, be refunded to the plaintiff as per rule.
3. Decree be drawn accordingly.
4. Judgement is dictated and pronounced in open Court.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 10/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 10/03/2021
Transcribed on : 10/03/2021
Checked on : 10/03/2021
and Signed on : 10/03/2021.
( 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”
12.03.2021 at 03.20 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 10.03.2021
Judgment/order signed by P.O. on 10.03.2021
Judgment/order uploaded on 12.03.2021
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