Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010108442019
Presented on : 22.10.2019
Registered on : 16.12.2019
Decided on : 23.08.2022
Duration : 2Y : 8M : 7D
EXHIBIT 08
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 1277 OF 2019
Rajesh Arjun Pawar
Age 26 Yrs., Indian Inhabitant,
carrying on business at Chawl No. LG
36, room No.6, Indira Nagar, Sundar
Baug, Kamani, Kurla (W), Mumbai
400 070.
...Plaintiff
Versus
Vilas Namdev Pawar, adult, working
for gain with Mahanagar Telephone
Nigam Ltd; Dept. GM (East1), Emp.
NO.M044157, PF No.BYTD/38787,
Nityanand Nagar, Ghatkopar (W),
Mumbai 400 086 and residing at
B.D.D. Old Chawl No.17A, Rook
No.65, Jyotiba Phule Road, Naigaon,
Dadar (E), Mumbai 400 014.
...Defendant
Appearance :
Ld. Advocate Mr. Rajesh M. Patil for plaintiff.
-- 1 of 6 --
2
Exparte Judg.in Sum SU No.1277/2019
None for defendant (Exparte).
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 23/08/2022
Judgment
This is a summary suit filed under Rule 2 of Order XXXVII of
Code of Civil Procedure, 1908 ('CPC' for short) for recovery of an
amount of Rs.2,90,000/ along with interest at the rate of 18% from
the date of filing of the suit till receipt of entire payment.
Plaintiff’s case
2. Plaintiff had advanced a sum of Rs.2,90,000/ to the
defendant on 10.01.2019 without any interest. At that time defendant
had issued a postdated cheque of Rs.2,90,000/ in favour of plaintiff.
3. Plaintiff contends that he requested defendant to pay the
amount but defendant neglected to pay. Plaintiff sent a demand notice
dated 18.09.2019 to the defendant through his advocate. In spite of the
notice, defendant did not pay the amount. Therefore, plaintiff is
constrained to file the present suit.
4. Defendant was duly served, however, he remained absent.
Therefore, this Court proceeded exparte .
5. So as to prove the claim, plaintiff has filed claim affidavit at
Exhibit03 and has reiterated his contention and entitlement to recover
Rs.2,90,000/ from the defendant. In support of his claim plaintiff has
filed the original dishonoured cheque issued by defendant in favour of
plaintiff dated 23.08.2019 (Exhibit05), the cheque return memo issued
-- 2 of 6 --
3
Exparte Judg.in Sum SU No.1277/2019
by Canara Bank dated 07.09.2019 (Exhibit06), demand notice dated
18.09.2019 (Exhibit07). The said notice purportedly bears
acknowledgment of receipt of notice by the defendant.
6. So as to decide the present suit, following points arise for my
consideration. I have recorded my findings along with reasons on the
said point as under :
Sr.
No.
Points Findings
1. Whether plaintiff is entitled to
recover an amount of Rs.2,90,000/
from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs.2,90,000/ from the
defendant along with
interest @ 06%p.a.
from date of filing of
the suit till realization.
2. What order and decree? Suit is partly decreed as
per final order.
REASONS
As to Point No. 1
7. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record the requisite
evidence to prove his entitlement. As noted above, plaintiff has filed
dishonoured cheque dated 23/08/2019 which reveals that the
defendant had issued a cheque of Rs.2,90,000/ in favour of the
plaintiff. The issuance of the cheque presupposes that it is issued for
consideration as envisaged under Section 118 of Negotiable Instruments
Act, 1881. The cheque return memo (Exhibit06) boosts contention of
plaintiff that the cheque was dishonoured for the reason 'account
blocked'. Thus, the testimony of plaintiff that he had paid an amount of
-- 3 of 6 --
4
Exparte Judg.in Sum SU No.1277/2019
Rs.2,90,000/ to the defendant as a hand loan is supported by the
documents.
8. Plaintiff has also placed on record the copy of the demand
notice, which reveals that the plaintiff had demanded the amount to the
defendant. Plaintiff on oath contends that amount due is not paid. This
contention being unchallenged deserves to be accepted. Hence I hold
that that plaintiff is entitled to recover an amount of Rs.2,90,000/ from
the defendant.
9. So far as claim of interest is concerned, plaintiff has claimed
interest at the rate of 18% p.a. from the date of filing of the suit till its
entire realization. Admittedly the transaction between the plaintiff and
defendant is purely a handloan transaction, without any interest.
Therefore, I find that the claim of interest at the rate of 18%.p.a. is
excessive. Considering, Section 34 of CPC and the rate of interest on
the fixed deposits granted by the Nationalised banks, I find it just and
proper to award interest at the rate of 06% p.a. from the date filing of
the suit till realization of entire amount. Hence, I answer point No.1 in
affirmative.
As to Point No. 2
10. From the findings recorded to the point No.1, it is clear that
plaintiff is entitled to recover an amount of Rs.2,90,000/ from the
defendant along with interest at the rate of 06% per annum from the
date of filing of the suit till its full realization. Hence, in answer to point
No.2, I proceed to pass following order.
ORDER
1) Summary Suit No.1277 of 2019 is hereby partly decreed with
costs.
-- 4 of 6 --
5
Exparte Judg.in Sum SU No.1277/2019
2) Defendant do pay an amount of Rs.2,90,000/(Rupees Two
Lakhs and Ninety Thousand Only) to the plaintiff along with
interest at the rate of 06% per annum from the date of filing
of the suit i.e. from 22.10.2019 till its full realization.
3) Decree be drawn up accordingly.
4) Plaintiff is entitled for refund of Court fees, as per rules.
Date 23/08/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 23/08/2022
Transcribed on : 23/08/2022
Signed on : 23/08/2022
-- 5 of 6 --
6
Exparte Judg.in Sum SU No.1277/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
23/08/2022 05.50 P.M. Ms. Harshada Hanumant Sawant
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
23/08/2022
JUDGMENT/ORDER signed by P. O. on 23/08/2022
JUDGMENT/ORDER uploaded on 23/08/2022
-- 6 of 6 --