Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010114012019
Filed on :06.11.2019
Registered On :20.11.2019
Decided on :02.02.2022
Duration : Y-02/M-02/D-27
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 1135 OF 2019
IN
Exhibit-06
CNR No. MHCC01-011401-2019
Premchand Gulabchandji
Age: 77 years.
of Mumbai, an adult Indian inhabitant,
of Money Lending at and from
46, Modi Street, Ground Floor, Fort,
Mumbai- 400 001. ... Plaintiff
V/s.
1. Krishna Pandurang Jangam
Age not known of Mumbai an adult Indian,
inhabitant working for gain PA, Saving Bank
G.P.O. Mumbai., And
Residing at Vinayak Aangan B-403,
Dahivali, Karjat West 421 201.
2. Ramesh Tukaram Dhomse
age not known, of Mumbai an adult Indian,
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inhabitant working for gain PA, Saving Bank
G.P.O Mumbai, and residing at C-2-19-1st floor,
Room No.3., Sector 16, Vashi , Navi Mumbai-
400 703. ... Defendants
SUIT FOR RECOVERY OF MONEY
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 02/02/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendants.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff is doing business of money lending. The
defendants approached to him for loan. Hence, on 4.4.2019, the
defendants executed a Demand Promissory Note in favour of the
plaintiff for valuable consideration being a sum of Rs.60,000/- received
by the defendants from the plaintiff against and on the basis of
execution and handing over of the said Demand Promissory Note. By
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the said demand promissory Note the defendants promised to pay to the
plaintiff said sum of Rs.60,000/- alongwith interest thereon @15% p.a.
on demand. The defendants thereafter failed and neglected to repay the
amount as per the stipulation and promise given in the demand
promissory note. Hence, after waiting for sufficient time, the plaintiff
issued advocate’s letter dtd.7.5.2019 calling upon the defendants to
make the repayment of the outstanding amount. The due and payable
amount against the defendant alongwith 15% interest is
Rs.64,068.49ps/-. Said amount is not paid by the defendants. Hence,
plaintiff is constrained to file the suit for recovery of the said amount.
3. The suit summons were duly served on the defendants
but he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendants as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.64,068.49ps/--with
interest
@ 15 % per annum on
principal amount of
Rs.60,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.05 i.e the list of documents:
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Sr.
No.
Description of documents Exhibits
1 Promissory Note dated 4.4.2019
being Exhibit “A” to the plaint.
Exh. 5/1
2 Plaintiff’s advocates’ letter dated
7.5.2019 being Exhibit “B” to the
plaint alongwith the postal records
in connection with the
transmission and delivery thereof.
Exh. 5/2
3 Money Lending Licence Exh.5/3
4 Forms under Bombay Money
Lending Act.
Exh.5/4
5 Books of Accounts. Exh.5/5
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded
under order XXXVII of C.P.C as the same is not contested by the
defendants. The plaintiff has to establish the entitlement for the
monetary relief, undoubtedly, as per the procedure laid down in order
XXXVII C.P.C, once the suit is not contested by the defendants, the
plaintiff is entitled for the relief claimed in the suit plaint. Here, the
plaintiff has produced above referred documents including his money
lending licence, which made him entitle to lend money.
7. All the documents produced by the plaintiff at Sr.No.1 to 5
goes to establish that plaintiff has given amount of Rs.1,80,000/-to the
defendants. The documents further prove that the amount of
Rs.64,068.49ps/- is due and payable to the plaintiff from defendants
towards the amount. The defendants have failed to repay the said
amount to the plaintiff. The documents at Sr.No.1 to 5 goes to establish
that the defendants are liable to pay Rs.64,068.49ps/- to the plaintiff
on the date of filing of the suit towards the said amount. He failed to
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comply with the demand letter. In this background, it is held that
plaintiff is entitled to recover sum of Rs.64,068.49ps/- from the
defendant.
8. The plaintiff has claimed 15% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial
and there is no contract pertaining to the same between the parties. In
the present case, the transaction is commercial one and there is contract
existing between the parties as to the rate of interest which shall be
levied. The agreed rate of interest is 15% p.a hence, I hold that, the
transaction being commercial one and the agreed rate of interest is @
15% per annum, said rate of interest of 15% p.a would be just and
proper to be awarded on the principal sum adjudged i.e. amount of
Rs.60,000/-. Hence, point No.1 is answer in the affirmative.
AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.64,068.49ps/- from the defendants
with interest on principal amount of Rs.60,000/- at the rate of 15% per
annum from the date of filing of the suit till its realization. Plaintiff is
also entitled to recover cost of the suit from defendants. Hence, in
answer to point No.2, I proceed to pass the following order:
O R D E R
1. The defendants shall pay Rs.64,068.49ps/-(Rs. Sixty
Four Thousand Sixty Eight and Forty Nine Paise Only) to
the plaintiff with interest on principal amount of
Rs.60,000/- at the rate of 15% per annum from the date
of filing of the suit till its realization.
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2. Defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :02/02/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :02.02.2022
Typed on :02.02.2022
Signed on :02.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/02/2022 3.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
02/02/2022
JUDGMENT/ORDER signed by
P.O.on
02/02/2022
JUDGMENT/ORDER uploaded on 02/02/2022
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