Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.1127/2019
MHCC010118082019 Presented on : 24/09/2019
Registered on : 13/11/2019
Decided on : 21/08/2023
Duration : 03Y 10M 28D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.14
SUMMARY CIVIL SUIT NO.1127 OF 2019
M/S. SUPREME BANKERS,
Through Partner (Ramesh S. Solanki) a
Partnership Firm, carrying on business at 40,
Hanuman Lane, 2nd Floor, Babu Genu Road,
Kalbadevi, Mumbai – 400 002.
]
]
]
]
] ..Plaintiff
Versus
Mrs. VAISHALI VISHWAS PATIL,
of Mumbai, Indian Inhabitant, Occupation : Service,
Working at Nowrasjee Wadia Maternity Hospital,
Emp. Code: 75, AS Staff Nurse, Nursing Dept.
Operational Theatre, First Floor, Acharya Dhonde
Marg, Parel, Mumbai – 400 012.
And
Residing at D-2, Moraj Residency, Room No.501,
Palm Beach Road, Sector No.16, Sanpada, Near
Axiz Bank, Navi Mumbai – 400 705.
]
]
]
]
]
]
]
]
] ..Defendant
Appearance :-
Learned Advocate Pushpa Goswami for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 21/08/2023.
-- 1 of 6 --
..2.. Summary Civil Suit
No.1127/2019
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.2,83,200/-. The plaintiff is a partnership firm and carrying on
business of finance and money lending. Plaintiff has come with the
case that it had advanced loan to the defendant from time to time
totaling to Rs.2,40,000/- and had agreed to repay the same with
interest at the rate of 18% per annum. It is the contention of plaintiff
that in September-2018, defendant issued cheque of Rs.2,40,000/-
dated 21/09/2018 in favour of plaintiff. It is further contended that
when the cheque was presented to the bank, it was returned unpaid
with Banker’s memo dated 25/09/2018 with remark “Funds
Insufficient”. Upon verbal communication, defendant requested for
time for repayment of cheque amount. However, as defendant did not
pay the amount, the plaintiff is entitled for recovery of amount
alongwith interest at the rate of 18% per annum.
2 The writ of summons was served through Reg. Post A.D.
upon the defendant vide Exhibit-05. The acknowledgment card
revealed that envelop on the address of residence has been unclaimed
but the summons on the address of office has been delivered.
Defendant failed to appear before the Court upon service of summons,
hence, as per order in
roznama dated 16/03/2020, suit proceeded ex-
parte against defendant.
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 :-
-- 2 of 6 --
..3.. Summary Civil Suit
No.1127/2019
POINTS FINDINGS
1 Does the plaintiff prove that the
defendant is in due of amount of
Rs.2,40,000/- ?
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.
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 list (Exhibit-07). Heard learned advocate for
plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit-06) alongwith documents as per list (Exhibit-07). On
perusal of cheque (Exhibit-11), it reveals that it bears signature of the
defendant. In consequence of failure to pay the amount under the
cheque, the plaintiff has issued a notice on 29/09/2018. The plaintiff
is a money lender having license bearing No.RBC-514, hence, it is
entitled to recover the amount as a money lender. The plaintiff has
claimed payment of Rs.2,40,000/- which are due and recoverable from
the defendants, thus, there is no reason to disbelieve the contention of
plaintiff, which remains unchallenged. It is a presumption that if a
cheque is issued, it is issued for discharging legal debt or liability.
-- 3 of 6 --
..4.. Summary Civil Suit
No.1127/2019
Hence, suit deserves to be decreed as per the provisions of Order
XXXVII Rule 2(3) of the Code of Civil Procedure.
6 There is nothing on record to show that the defendant has
ever paid any amount under the cheque. His absence and omission to
appear before the Court on being served with the writ of summons
shows that he has no substantial defence and has admitted the claim of
plaintiff. Therefore, the plaintiff is entitled to recover the amount
under the cheque.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% 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 defendant. Had it been paid to the plaintiff as per
demand, it 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 29/09/2018, 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 defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
ORDER
1. Summary Civil Suit No.1127/2019, is hereby partly
decreed with costs.
-- 4 of 6 --
..5.. Summary Civil Suit
No.1127/2019
2. Plaintiff is entitled to recover an amount of
Rs.2,40,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice issued by
the advocate of plaintiff on 29/09/2018, 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 : 21/08/2023 C.R. No.15
Dictated on : 21/08/2023
Typed on : 22/08/2023
Signed on : 23/08/2023
-- 5 of 6 --
..6.. Summary Civil Suit
No.1127/2019
“Certified to be true and correct copy of the original signed order”.
23/08/2023
at about 05.47 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 : 21/08/2023
Order signed by Hon'ble Judge on : 23/08/2023
Order uploaded on : 23/08/2023
at about 05.47 p.m.
-- 6 of 6 --