Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010119102019
Presented on : 21.11.2019
Registered on : 05.01.2021
Decided on : 01.10.2022
Duration : 2Y,10M,10D
EXHIBIT8
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 13 OF 2021
M/S OTARMAL KANTILAL & CO.
A Registered Partnership Firm
carrying on business at Shop No.8,
Kalyan Building No.2, Sadashiv Cross
Lane, Kandewadi, Bombay400 004
through its Partner Mr.Parasmal
Otarmal Jain, Aged about 64 Years.
...Plaintiff
Versus
1. VITTHAL JAGANNATH ADAGALE
(Age not known)
an adult Indian Inhabitant, working
for gain with I.G. Mint, Annulling
Deptt., T.No.3701, S.B.Marg Fort,
Mumbai 400 023 and residing at
Gangadhar Tower, 'A' Wing, Room
No.403, 4th Floor, Kamothe,
Mansarovar, Sector9, Navi Mumbai.
2. NITA VITTHAL ADAGALE
(Age not known)
an adult Indian Inhabitant residing at
Gangadhar Tower, 'A' Wing, Room
No.403, 4th Floor, Kamothe,
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2
Mansarovar, Sector9, Navi Mumbai.
...Defendants
Appearance :
Ld. Advocate Mr. Dileep Satale for plaintiff.
None for defendant (Exparte).
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 01/10/2022
Judgment
This is the suit filed under rule 2 of order XXXVII of Code of
Civil procedure, 1908 (CPC) for recovery of principal amount of
Rs.40,000/ along with interest thereon at the rate of 18% per annum
till its realization.
PLAINTIFF’S CASE
2. Plaintiff contents that on 20.03.2017 defendant No.1 for
valuable consideration of Rs.40,000/, drew a Bill of Exchange directing
defendant No.2 to pay to the plaintiff of sum of Rs.40,000/ on demand.
Said Bill of Exchange was accepted by defendant No.2 on the same day.
3. Plaintiff further contends that on 19.04.2017 when he
presented the Bill to defendant No.2 and demanded the amount, he
dishonored the same by non payment. Therefore, plaintiff informed the
same to the defendant No.1 and demanded the amount. However, both
the defendants failed and neglected to pay the amount. Therefore,
plaintiff issued demand notice through his advocate on 25.06.2019 and
called upon defendants to pay the amount. It is further contented that
in spite of receipt of notice, defendants failed and neglected to pay the
amount. Hence, the present suit.
4. Defendants were duly served however, they failed to appear
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before this court. Therefore, suit proceeded exparte.
5. In support of claim, plaintiff filed his affidavit of claim at
Exhibit6 and reiterated his contention of recovery of Rs.40,000/ 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.7/2 Original bill of exchange dated 22.12.2016.
2 Exh.7/3 Office copy of demand notice dated 25.06.2019
alongwith the courier receipt.
6. So as to decide the present suit following points arise for my
consideration. I have recorded my findings along with reasons on the
said point as under :
Sr.
No.
Points/Issues Findings
1. Whether plaintiff is entitled to
recover principal amount of
Rs.40,000/ from defendants?
If yes, at what rate interest?
Plaintiff is entitled to recover
an amount of Rs. 40,000/
(from the defendant no.1
and 2 jointly and severely)
along with interest @ 9%
p.a. from date of filing of the
suit till realization.
2. What order and decree? Suit is decreed as per final
order.
REASONS
AS TO POINT NO. 1
7. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record the requisite
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evidence to prove its entitlement to recover the amount.
8. Plaintiff has filed his claim affidavit in support of his
contentions of receipt of Bill of Exchange for consideration of
Rs.40,000/. His oral testimony is supported by the original Bill of
exchange dated 20.03.2017. Plaintiff enjoys presumption under Section
118(a) of Negotiable Instruments Act, 1881, which supports the
contention of plaintiff that the present Bill of exchange was issued for
the valuable consideration of Rs.40,000/.
9. As noted above, plaintiff has filed on record demand Bill of
Exchange dated 20.03.2017 which reveals that the defendant No.1
executed the Bill of exchange for valuable consideration of Rs.40,000/.
The said Bill of exchange bears signature of defendant No.1 as a drawer
and signature of defendant No.2 as accepter. The plaintiff on oath has
deposed that the said Bill of Exchange came to dishonored by non
payment at the hands of defendant no.2.
10. Ld.Adv. for plaintiff submits that in view of Section 32 r/w
Section 37 of Negotiable Instruments Act, 1881, defendant No.2 being
'accepter', is also liable for the payment. He further places reliance on
the authority of Hon'ble Bombay High Court in case of Ashok
Mohansing Bajaj V/s Elegant Pharmaceuticals Ltd, 2000 (2) Mh.L.J,
855 and submits that the liability of accepter of bill of exchange is co
extensive as that of drawer. Hon'ble High Court in para no.7 has
observed that the 'accepter' of Bill of Exchange is also a principal debtor.
As such both defendants are liable to pay jointly and severally.
11. As there is no contra evidence on record, the fact of issuance
of Bill of exchange for valuable consideration is can not be disputed.
The copy of demand notice revels that defendants failed to honor the
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bill of exchange. Hence, I hold that the plaintiff is entitled to recovered
the principal amount of Rs.40,000/ from the defendants jointly and
severally.
12. 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 on leadings by Nationalized Banks. Admittedly the transaction
between plaintiff and defendants was not at all a commercial
transaction. Therefore, I find it just and proper to grant interest at the
rate of 9% p.a. on the principal sum of Rs.40,000/ from the date of
filing of the suit till its realization. Hence I answer the point no.1
accordingly.
AS TO POINT NO.2.
13. From the findings recorded to the point No.1, it is clear that
plaintiff is entitled to recover an amount of Rs.40,000/ from the
defendants along with interest at the rate of 09% per annum. Hence, in
answer to point No. 2, I proceed to pass following order.
ORDER
1) Summary Suit No. 13 of 2021 is hereby partly decreed with costs.
2) Defendants jointly and severally do pay an amount of Rs.40,000/
(Rupees Forty Thousands Only) to the plaintiff along with interest at
the rate of 09% per annum from the date of filing of suit i.e.
21/11/2019 till its realization.
3) Court fees be refunded to the plaintiff as per rules.
4) Decree be drawn up accordingly.
Date 01/10/2022. (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
06/10/2022 (01.21pm) Mr.SUHAS MAHURE
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
01/10/2022
JUDGMENT/ORDER signed by P. O. on 05/10/2022
JUDGMENT/ORDER uploaded on 06/10/2022
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