Final Order 1

Order Details: Ex-parte Judgement
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MHCC010109272019
Presented on :24102019
Registered on :25112019
Decided on :09032023
Duration :3Y4M16D
EXHIBIT7
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 1179 OF 2019
MAHENDRA MURLIDHAR DESAI
age 46 Yrs of Mumbai, an adult,
Indian Inhabitant, having his address
at Sainath Chawl, Takiya Ward,
P.B.Desai, Builiding No.50, Kurla (W),
Mumbai400 070
...Plaintiff
Versus
DEEPAK HARISHCHANDRA
GHAVALI
Age not known
and adult Indian inhabitant,
Working for gain Department of post
India, Dr.Supdt of post offices,
Mumbai City East Devision, Mumbai
400 014 Design : S.B.Postal Assistant
(P.A), EMP CODE:680 Residing at
S/O. Harishchandra Ghavali, Flat
No.310/3, Ramshyam krupa coop,
Housing Society, Bhawani Shankar
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Road, Near Tilak Bhavan, Dadar (W)
400 028.
...Defendant
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
None for defendant (Exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 09/03/2023
Judgment
(Dictated and pronounced in open Court)
This is the suit filed under rule 2 of order XXXVII of Code of
Civil Procedure, 1908 (CPC) for recovery of principal sum of
Rs.2,00,000/ along with interest thereon at the rate of 18% per
annum till its realization.
PLAINTIFF’S CASE
2. Plaintiff is a licensed Money Lender. He had lent a sum of
Rs.2,00,000/ to the defendant on 05/04/2019 in cash. Defendant had
issued Demand Promissory note of Rs.2,00,000/ in favour of the
plaintiff on the same day. Defendant agreed to pay the amount on
demand along with interest at the rate of 18% p.a. Plaintiff demanded
repayment of the said amount but defendant neglected and failed to
pay the same. Therefore, plaintiff issued demand notice through his
advocate on 24/09/2021. In spite of the notice defendant failed and
neglected to pay the amount. Therefore plaintiff has filed present suit.
3. Defendant was duly served with writ of summons on
15.03.2022. However, he did not cause appearance before this Court
and therefore suit proceeded exparte against him.
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4. In support of claim, plaintiff filed his affidavit of claim at
Exhibit3 and reiterated his claim of recovery of Rs.2,00,000/ along
with interest at the rate of 18% p.a. Plaintiff has filed and relied upon
following documents.
Sr.
No.
Exhibit
No. Particulars
1 Exh.5 Demand Promissory note of Rs.2,00,000/
dtd.05/04/2019.
2 Exh.6 Office copy of demand notice dated 24.09.2021 along
with courier receipt and three returned Packets.
5. So as to decide the present suit following points arise for my
consideration. I have recorded my findings for the reasons as under :
Sr.
No.
Points/Issues Findings
1. Whether plaintiff is entitled to
recover principal amount of
Rs.2,00,000/ from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs. 2,00,000/ from the
defendant along with
interest @ 9% 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
6. 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 its entitlement.
7. Plaintiff has filed his claim affidavit in support of his
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contentions of receipt of promissory note for consideration of
Rs.2,00,000/. His oral testimony is supported by the original
promissory note dated 05.04.2019. Plaintiff enjoys presumption under
Section 118(a) of Negotiable Instruments Act, 1881, which supports the
contention of plaintiff that the present promissory note was issued for
the valuable consideration of Rs.2,00,000/.
8. The defendant has not appeared in the matter in spite of the
receipt of summons from this Court, which gives an inference that
defendant has nothing to contest and he does not dispute the claim of
the plaintiff. In view of Rule 2(3) of order XXXVII of CPC, owing to
failure of defendant to cause appearance, it needs to be presumed that
defendant admits the allegations contained in the plaint. Hence, I hold
an amount of Rs.2,00,000/ is due and payable to the plaintiff from the
defendant. Hence, I answer point No.1 in affirmative.
9. So far as claim of interest is concerned, plaintiff has claimed
interest at the rate of 18 % p.a. Same is excessive as compared to rate of
interest of Nationalized Banks. Considering nature of transaction and
time lapsed from date of lending of amount, I find it just and proper to
grant interest at the rate of 9% p.a. from the date of filing of the suit till
its realization.
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.2,00,000/ from the
defendant along with interest at the rate of 9% per annum. Hence, in
answer to point No. 2, I proceed to pass following order.
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ORDER
1) Summary Suit No.1179 of 2019 is hereby partly decreed
with costs.
2) Defendant do pay on amount of Rs.2,00,000/ (Rupees Two
Lakhs Only) to the plaintiff along with interest at the rate of
9% per annum from the date of filing of the suit i.e.
24/10/2019, till realization of entire amount.
3) Plaintiff is entitled for refund of court fees as per rules.
4) Decree be drawn up accordingly.
Date 09/03/2023. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
09/03/2023 5.14PM Mr. SUHAS DADARAO MAHURE
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
09/03/2023
JUDGMENT/ORDER signed by P. O. on 09/03/2023
JUDGMENT/ORDER uploaded on 09/03/2023
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