Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.1136/2019
MHCC010114022019 Presented on : 06/11/2019
Registered on : 20/11/2019
Decided on : 23/08/2023
Duration : 03Y 09M 18D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.12
SUMMARY CIVIL SUIT NO.1136 OF 2019
PREMCHAND GULABCHANDJI
of Mumbai, an adult Indian Inhabitant,
carrying on business of Money Lending at and
from 46, Modi Street, Ground Floor, Fort,
Mumbai – 400 001.
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] ..PLAINTIFF
V/s.
1. KALPANA JAYESH BHATTY
2. KARTIK JAYESH BHATTY
both of Mumbai, adult, Indian Inhabitant
residing at RB-III, Central Railway Colony,
(Old) Bld. No.3, Room No.1, Kalwa Dist:Thane.
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] ..DEFENDANTS
Appearance :-
Mr. Ramesh Jain, learned advocate for plaintiff.
None for defendants (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 23/08/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.1,58,691.78/- under the demand promissory note. The plaintiff has
come with the case that he had advanced loan of Rs.1,50,000/- to Mr.
Jayesh Rasiklal Bhatty, since deceased (hereinafter referred to as “said
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No.1136/2019
deceased”), who executed demand promissory note on 12/06/2019.
The said deceased had agreed to pay the amount of Rs.1,50,000/- on
demand alongwith interest at the rate of 15% per annum. The
defendants are the legal heirs of the said deceased. The loan amount
under the demand promissory note was not repaid, therefore, the
plaintiff is entitled for recovery of amount alongwith interest at the
rate of 15% per annum from the legal heirs of said deceased. It is the
contention of plaintiff that defendants are jointly and severally liable to
pay the amount of Rs.1,50,000/- alongwith interest to the plaintiff.
2 The writ of summons was served upon defendants vide
Exhibit-05, the envelope of summons was not claimed though the
intimation was posted. The defendants failed to appear before the
Court, hence, as per the order in
roznama dated 10/11/2021, suit
proceeded ex-parte against the defendants.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the
deceased Jayesh Rasiklal Bhatty has
executed demand promissory note of
Rs.1,50,000/-?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
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R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
documents under lists (Exhibit-07 and Exhibit-09). Heard learned
advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The authorised of plaintiff has tendered his Claim Affidavit
(Exhibit-06) alongwith documents as per lists (Exhibit-07 and Exhibit-
09). On perusal of demand promissory note, it reveals that it bears
signature of the said deceased. In consequence of failure to pay the
amount under the demand promissory note, the plaintiff issued a
notice on 10/07/2019 to the said deceased and later he issued another
notice on 22/08/2019 to the defendants, who are the legal heirs of
said deceased. Thus, the plaintiff is entitled for recovery of amount
under the demand promissory note. The plaintiff is a money lender
having license bearing No.RBC-231, hence, he is entitled to recover the
amount as a money lender. He filed another document related to his
license, forms and also cashbook. Thus, it is established that said
deceased had executed the demand promissory note for Rs.1,50,000/-.
The present defendants are the legal heirs of the said deceased, who
executed the promissory note in favour of plaintiff, after his death the
right to sue survives against the defendants as per the Section 306 of
the Indian Succession Act and the defendants are liable to pay the
amount under the promissory note to the plaintiff.
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6 There is nothing on record to show that the defendants
have ever paid any amount under the demand promissory note. Their
absence and omission to appear before the Court on being served with
the writ of summons shows that they have no substantial defence and
have admitted the claim of plaintiff. Therefore, there is no reason to
disbelieve the contentions of plaintiff, which remains unchallenged.
Hence, suit deserves to be decreed as per the provisions of Order
XXXVII Rule 2(3) of the Code of Civil Procedure.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 15% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendants. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e. notice
of advocate dated 10/07/2019, till its full realisation. In view of above
discussions, I answer point No.1 in affirmative and point Nos.2 and 3
in partly affirmative.
8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Civil Suit No.1136/2019, is hereby partly
decreed with costs.
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2. Plaintiff is entitled to recover an amount of
Rs.1,50,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice issued by
the advocate of plaintiff on 10/07/2019, till its full
realisation from the defendant.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 23/08/2023 C.R. No.15
Dictated on : 23/08/2023
Typed on : 23/08/2023
Signed on : 23/08/2023
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“Certified to be true and correct copy of the original signed order”.
25/08/2023
at about 12.30 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 23/08/2023
Order signed by Hon'ble Judge on : 23/08/2023
Order uploaded on : 25/08/2023
at about 12.30 p.m.
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