Final Order 4

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No.1270/2021
Lodged on : 21.11.2019
Admitted on : 11.10.2021
Decided on : 12.07.2022
Duration : Y M D
2 7 21
COMMERCIAL SUIT NO.1270 of 2021
CNR NO. : MHCC010119022019
Exh.11
Jyoti Datta Wagh, Age 31 years,
of Mumbai an adult, Indian Inhabitant,
having her address at 1/11, Ram Niwas
Chawl Sunder Baug, Kurla (West),
Mumbai – 400 070 through her C.A.
Manjusha Nandkishor Shete. ...Plaintiff
Versus
Indubai Chandrakant Lihinar
age not known of Mumbai an adult
Indian Inhabitant working for gain with
BMC, “L” Ward, Conservancy Dept.,
S.G.Barve Marg, Kurla West,
Mumbai – 400 070, Worker No. 4457307.
Paysheet No. 6027, r/at New Gautam
Nagar, Part No. 4, Deonar, Govandi,
Mumbai – 400 043. ….Defendant
Appearance:
Adv. Mr. Ramesh Jain for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 12th JULY 2022
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2 Judgment in Com. Suit No.1270/2021
J U D G M E N T
(Delivered on : 12.07.2022)
The Commercial suit was filed by the plaintiff against the
defendant for recovering the amount.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is carrying on money lending business. On
02/06/2016, the defendant for valuable consideration drew a Demand
Promissory Note in favour of the plaintiff for valuable consideration of
Rs. 5,00,000/ received by the defendant from the plaintiff. By the said
Demand Promissory Note, the defendant promised to pay to the plaintiff
the sum of Rs. 5,00,000/ along with interest.
3. The plaintiff on several occasions called upon the
defendant to pay the amount of Rs.5,00,000/ alongwith interest, but
the defendant under one pretext or the other avoided the payment. The
plaintiff issued the legal notice through Advocate on 02/05/2019 to the
defendant and called upon him to pay the balance amount. The
defendant received the said letter, but not replied the letter nor paid the
amount. According to the plaintiff, there is now due and payable by the
defendant to the plaintiff a sum of Rs. 7,62,356/. Hence, the plaintiff
filed the present suit against the defendant and prayed that, defendant
be ordered to pay an amount of Rs 7,62,356/ to the plaintiff along with
interest at the rate of 18% per annum.
4. The writ of summons was duly served to the defendant, but
he failed to appear. Hence, the suit was proceeded exparte against the
defendant.
5. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
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3 Judgment in Com. Suit No.1270/2021
POINTS FINDING
1) Whether plaintiff proves that an
amount of Rs.7,62,356/ is
outstanding from the defendant?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of Rs.7,62,356/
from the defendant? If yes, at what
rate of interest ?
In the affirmative.
At the rate of Rs.12% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
6. In order to prove the claim on behalf of the plaintiff, her
power of attorney namely Priya Dhuri is examined at Exh.3. Plaintiff
also filed documentary evidence i.e. Promissory Note Exh.5, Letter to
defendant at Exh.6, Money lending license at Exh.7, Books of Accounts
at Exh.9 and Evidence Closure Pursis filed by the plaintiff is at Exh.10.
As to Point Nos.1 to 3
7. Heard Learned Advocate Mr. Ramesh Jain for the Plaintiff
at length. The Learned advocate for the plaintiff referred the contents
in the plaint and pointed out the documents in the course of argument.
The plaintiff advanced the sum of Rs.5,00,000/ to the defendant. The
defendant has executed Demand Promissory Note of Rs.5,00,000/. The
defendant denied the responsibilities to pay the due amount. Therefore,
the plaintiff sent notice to the defendant and demanded the said
amount. He argued that the plaintiff led oral and documentary evidence
and proved his claim. He submitted that, the plaintiff is entitled to claim
the outstanding amount from the defendant along with interest at the
rate of 18% per annum.
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4 Judgment in Com. Suit No.1270/2021
8. According to the plaintiff, he has advanced sum of
Rs.5,00,000/ to the defendant. The defendants has executed the
Demand Promissory Note. According to plaintiff, an amount of
Rs.5 lakh is outstanding from the defendant by way of principal amount
and an amount of Rs. 2,62,356/ by way of interest. This is commercial
suit. The defendant was duly served with the suit summons, but he
failed to appear before the Court. The defendant has not contested the
claim by filing his written statement. In my view, the averments made
in the plaint by the plaintiff is not denied/disputed by the defendant.
Therefore, it can be presumed that, the averments in the plaint were
deemed to be admitted by the defendant.
9. The present suit is not contested by the defendant. The
document produced on record by the plaintiff shows that the defendant
received an amount of Rs. 5,00,000/ from the plaintiff and executed
Demand Promissory Note in favour of the plaintiff and agreed to pay
the amount on demand. It further reveals from the record that said
transaction took place on 02.06.2016. The notice was issued to the
defendant on 02.05.2019 as per Exh.6. The suit was filed by the
plaintiff on 04.05.2019 and matter was referred for preinstitution
mediation. Suit is within limitation.
10. In support of the pleading, the plaintiff examined her
power of attorney holder Priya Dhuri at Exh.3. She had reiterated the
contents of the plaint. She also deposed that, the sum of Rs.5,00,000/
was advanced to the defendants dated 02.06.2016. The defendant also
executed the Demand Promissory Note of Rs. 5,00,000/ The defendant
failed to pay the remaining balance amount to the plaintiff. The
aforesaid evidence of the plaintiff was not subjected to the cross
examination. The defendant failed to conduct the crossexamination of
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5 Judgment in Com. Suit No.1270/2021
the plaintiff. It means the oral evidence of the plaintiff is remained
unchallenged.
11. The oral evidence of the plaintiff is supported by
documentary evidence at Exh.5 to 8. The documents produced on
record by the plaintiff shows that, the defendant received an amount of
Rs.5,00,000/ from the plaintiff. The Demand Promissory Note at Exh.5
also shows that the defendant has received the sum of Rs. 5,00,000/
from the plaintiff and agreed to pay the said amount on demand. The
said Demand Promissory Note bears the signature of the defendant.
12. The documentary evidence tendered by the plaintiff was
not challenged by the defendant. All the documents produced by the
plaintiff at Exh.5 to 8 shows that the plaintiff has advanced an amount
of Rs.5,00,000/ to the defendant and defendant executed Demand
Promissory Note in favour of the plaintiff. The plaintiff is claiming the
amount of Rs.7,62,356/, which amount is calculated with interest. The
said amount is not repaid by the defendant. Therefore, the defendant is
liable to pay the outstanding amount of Rs.7,62,356/ to the plaintiff.
Hence, I hold that, the plaintiff by leading oral and documentary
evidence sufficiently proved that, an amount of Rs.7,62,356/
(including principal amount and interest) is outstanding from the
defendant. Therefore, the plaintiff is entitled to recover the said
amount from the defendant.
13. Apart from the said amount, which is due against the
defendant on the date of the filing of the suit, the plaintiff has also
claimed the interest at the rate of 18% per annum on the principal
amount. In my view, considering the nature of the transaction, it is just
and proper that, the rate of interest of 12% per annum would be
awarded on the principal sum of Rs.5,00,000/. Hence, the plaintiff is
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6 Judgment in Com. Suit No.1270/2021
entitled to recover outstanding amount of Rs.7,62,356/ from the
defendant alongwith interest at the rate of 12% per annum. Hence, my
finding as to point Nos.1 and 2 in the affirmative and point No.3
accordingly. Hence, I pass the following order :
ORDER
1) Commercial Suit No.1270 of 2021 is decreed with costs.
2) The defendant shall pay an amount of Rs.7,62,356/ to
the plaintiff along with interest at the rate of 12% per
annum on the principal amount of Rs.5,00,000/ from
the date of filing of the suit till realization within 3
months from the date of this decree.
3) Defendant shall bear the costs of the suit.
4) Court fee, if any, be refunded as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 12.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 12.07.2022
Typed on : 12.07.2022
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7 Judgment in Com. Suit No.1270/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
06.08.2022 1.30 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
12.07.2022
Judgment/order signed by P.O on 04.08.2022
Judgment/order reuploaded on 06.08.2022
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