Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010119162019 Presented on 21/11/2019
Registered on 03/02/2021
Decided on 18/08/2025
Duration 05Y: 08M: 27D
Exhibit 16
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 87 OF 2021
M/S. Otarmal Kantilal And Co. ]
A registered Partnership Firm carrying on ]
busines at Shop No.8, Kalyan Building No.2, ]
Sadashiv Cross Lane, Kandewadi, ]
Bombay - 400 004. ]
Through its Partner Mr. Parasmal Otarmal Jain, ]
Aged about 64 years. ]...Plaintiff
VERSUS ]
1. Yashwant Ramchandra Jadhav ]
(Age not known) ]
an adult Indian Inhabitant, working for gain ]
with Corporation Bank, Mahapalika Marg, St. ]
Xavier College, Mumbai-400 001 and ]
residing at Room No. 22, 2nd Floor, Vaibhav ]
Building, Subhash Road, Chincholi Pada, Mono ]
Bunty Bar, Dombivali (W), Dist - Thane ]
2. Daniel Vasave ]
(Full name and age not known) ]
an adult Indian Inhabitan, residing at ]
9/905, High Rise Building, G.T. Hospital ]
Mumbai - 400 001. ]...Defendants
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Appearance :
Ld. Adv. Udit Raghuwanshi i/b. Adv. Divya Jain for the plaintiff.
Defendants absent (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 18/08/2025
J U D G M E N T
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil procedure, 1908 (C.P.C.) for recovery of Rs. 1,52,027/- alongwith
interest and prayed for further interest from defendant No. 1.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per the plaintiff, he had advanced an amount of
Rs. 1,00,000/- to defendant No. 1 against which he had executed Bill
of Exchange directing defendant No.2 to pay on demand to the
plaintiff on 21/11/2016. Defendant No.2 has accepted and signed it as
an acceptor on 21/11/2016. Further, on 21/12/2016, plaintiff
presented said Bill of Exchange to defendant No.2 and demanded
amount, as defendant No. 2 failed to pay the said amount, thus, said
Bill of Exchange was dishonoured. Therefore, plaintiff informed about
dishonour of Bill of Exchange to defendant No. 1. Plaintiff claimed an
amount of Rs. 1,00,000/- from defendants. Further, defendants failed
to make the payment. Therefore, plaintiff is entitled for amount of
Rs.1,00,000/- along with interest at the rate of 18% p.a. As defendants
failed and neglected to pay said amount to the plaintiff, he issued
notice dated 11/02/2019 and called upon defendants to make the
payment of Rs. 1,52,027/- including interest. The cause of action arose
within the jurisdiction of this Court. Hence, this suit.
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03] Defendant No. 1 was served with the writ of summons on
30/08/2023. The plaintiff has filed affidavit of service at Exh. 6.
Despite service of the suit summons, defendant No. 1 has not caused
his appearance therefore, the suit proceeded ex-parte against him vide
order dated 30/03/2023. Further, plaintiff has withdrawn suit against
defendant No.2 vide order dated 11/01/2024 below application at
Exh. 8.
04] In support of claim, the plaintiff has filed affidavit of claim
of Mr. Parasmal Otarmal Jain as P.W.1 at Exh.9 and additional evidence
on affidavit at Exh. 9A and reiterated his contention for recovery of
Rs. 1,52,027/- along with the further interest at the rate of 18% p.a.
The plaintiff has filed and relied upon the following documents vide
Exh. 10. The plaintiff has filed evidence close pursis at Exh. 15.
Sr.
No. Exhibit No. Particulars
1 Exh. 12 Original Bill of Exchange dated 21/11/2016.
2 Exh. 13 colly Office copy of letter dated 11/02/2019 along with
courier receipt and returned envelope.
3 Exh. 14 Verified copy of extract of Registration of the
plaintiff's firm with registrar of Firm.
05] To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs. 1,52,027/-
from defendant No.1 ? If yes, at
what rate of interest ?
Yes, entitled to interest at the
rate of 7% p.a. on
Rs.1,00,000/-from 21/11/2019,
the date of filing of suit till its
full realization.
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2. What order and decree? As per final order.
R E A S O N S
As to Points No. 1 and 2 :-
06] Perused plaint, oral and documentary evidence of plaintiff.
Heard Ld counsel for plaintiff. As per plaintiff, he had advanced an
amount of Rs. 1,00,000/- on 21/11/2016 to defendant No. 1. It is also
contention of plaintiff that defendant No. 1 has executed Bill of
exchange on 21/11/2016. Plaintiff has filed said Bill of Exchange at
Exh. 12. Further, it is the contention of plaintiff that defendant No.2
has signed as a acceptor. On perusing said Bill of Exchange, it appears
that defendant No. 1 has borrowed an amount of Rs. 1,00,000/- from
plaintiff and executed said Bill of Exchange in his favour. Further, it
appears that defendant No. 2 has accepted said Bill of Exchange
07] It is further contention of plaintiff that he presented said
Bill of Exchange with defendant No.2 on 21/12/2016 however, he
failed to honour the said Bill of Exchange Thereafter, plaintiff informed
about the same. Thus, defendant No. 1 failed and neglected to make
payment of principal amount of Rs.1,00,000/- alongwith interest.
Therefore, plaintiff has issued notice dated 11/02/2019 at Exh. 13
colly. to defendant No. 1 by RPAD. On perusing said notice, it appears
that it is returned unserved. The plaintiff has filed sealed envelope on
record. However, there is nothing on record to show that defendant
No. 1 has replied to the said notice and denied their liability. Even, in
the present matter, defendant No. 1 has failed to appear and contest
the matter. Therefore, evidence of plaintiff has remained
unchallenged. Thus, from oral and documentary evidence on record
plaintiff has proved that he had advanced an amount of Rs. 1,00,000/-
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to defendant No. 1. It is also proved that defendant No. 2 has accepted
the said Bill of Exchange However, suit is disposed of against
defendant No. 2. Thus, defendant No. 1 is liable to make the payment
to the plaintiff.
08] The plaintiff has claimed interest at the rate of 18% p.a.
and he also claiming further interest at the same rate. It is pertinent to
note that plaintiff has failed to show that there is any agreement with
respect to the rate of interest. However, as per Section 80 of
Negotiable Instruments Act, 1881 interest at the rate of 18% p.a. can
be granted if rate of interest is not specified. Therefore, I am of the
view that plaintiff is entitled for interest at the rate of 18% p.a. from
21/11/2016 till the date of filing of the suit. Therefore, plaintiff is
entitled for an amount of Rs. 1,52,027/- including interest.
09] So far as, further interest is concerned plaintiff has
claimed further interest at the rate of 18% p.a. on principal amount of
Rs. 1,00,000/-. However, I am of the view that the same is excessive
as compared to the rate of interest of Nationalized Banks. Therefore,
having regard to the provision of Section 34 of the C.P.C., I am of the
view that granting the interest at the rate of 7% p.a. on the principal
amount would be just, proper and reasonable. Hence, I hold that the
plaintiff is entitled to interest at the rate of 7% p.a. on the principal
amount, from the date of filing the suit till its full realization. Hence, I
answer point No. 1 in affirmative and in answer to point No. 2, I
proceed to pass following order :-
O R D E R
1) Summary Suit No.87 of 2021 is hereby decreed with the
costs.
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2) Defendant No.1 shall pay an amount of Rs. 1,52,027/- (Rupees
One Lakh Fifty Two Thousand and Twenty Seven only) to the
plaintiff.
3) Defendant No.1 shall pay to the plaintiff simple interest on
Rs. 1,00,000/- at the rate of 7% p.a. from 21/11/2019, the date of
filing of suit till its full realization.
4) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 18/08/2025
Dictated on: 18/08/2025
Corrected & signed on: 19/08/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
21/08/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 18/08/2025
JUDGMENT/ORDER signed by P. O. on 19/08/2025
JUDGMENT/ORDER uploaded on 21/08/2025
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