Final Order 1

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MHCC010119292019 Presented on : 22-11-2019
Registered on : 22-11-2019
Decided on : 27-09-2021
Duration : Y M D
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BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.267 OF 2019
IN
COMMERCIAL SUIT NO.331 OF 2021
(SUMMARY SUIT NO.283 OF 2019)
Nivin Thampi
Aged:45, Occupation:Service
Residing at 16 Dreamland,
Dr.A Soares Road, Chembur,
Mumbai 400 071. ..Plaintiff
V/S
Nikhil Shashikant Udani
Age: Not known, Occupation: Business
Having office at
C/9, Satyam Shopping Centre,
M G Road, Ghatkopar(East),
Mumbai400 077 ..Defendant
_____________________________________________________
Ld. Advocate Amol Tembe for plaintiff
None for defendant
______________________________________________________
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ORAL ORDER
(Dated this 27th day of September 2021)
1. Summons for Judgment is taken out by plaintiff for
decree of suit for the sum of Rs.39,90,000/ alongwith future
interest.
2. Shorn of unnecessary details, plaintiff's case may
be summarized as under:
Defendant Nikhil Udani was acquainted with
plaintiff's father. On 20/01/2011, plaintiff advanced loan of
Rs.30 lacs by cheque bearing No.227749 drawn on Catholic
Syrian Bank Limited to defendant. Defendant agreed to pay
interest @ of 12% p.a. Defendant paid interest on this amount
during the period from 14/03/2011 to 29/03/2016. However,
defendant failed to pay interest payable on 01/04/2017. Till
01/04/2017, defendant used to give Account Confirmation on
First April of each year. However, after default in payment of
interest, defendant failed to give Confirmation of Account.
3. It is further submitted that during the Assessment
years from 20112012 to 20162017, TDS was deducted by
defendant and the same was deposited with Income Tax
authorities. Defendant failed to pay the interest since
01/04/2017, therefore plaintiff send notice through advocate on
11/09/2017 asking defendant to pay an amount of
Rs.35,28,000/ which was due and payable as on 31/08/2017.
4. Defendant gave interim reply through his advocate
on 06/10/2017. Defendant has denied plaintiff's claim.
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Defendant is liable to pay a sum of Rs.39,90,000/ as on
31/08/2017 alongwith future interest @ 12% p.a. from the date
of suit till it's realisation. With these pleadings, suit under Order
37 of C.P.C. is filed.
5. After service of writ of summons, defendant tendered
his appearance on 08/04/2019. Thereafter, plaintiff has taken out
Summons for Judgment. Summons for Judgment is duly served
upon defendant. But, defendant failed to file reply to Summons
for Judgment within stipulated period. Plaintiff prayed to allow
Summons for Judgment.
6. Plaintiff claims that he advanced loan of Rs. 30 lacs
to defendant. Plaintiff has given details of the cheque by which
the amount was paid to defendant. Plaintiff has also filed on
record statement of account to show that an amount of Rs.30 lacs
was debited from his account towards clearance of cheque given
to defendant. Thus, plaintiff's claim regarding payment made to
defendant is well supported by documents filed on record. Suit is
mainly based upon the Confirmation of account given by
defendant dated 01/04/2012, 01/04/2013, 01/04/2014,
01/04/2015 and 01/04/2016. All these Account Confirmation
statements shows that defendant has paid the interest amount. It
is pertinent to note that Confirmation Account statement filed on
record shows that interest amount of Rs. 3,24,000/ was paid
annually by defendant till 31/03/2016. Rs.35,80,000/ was
outstanding against the defendant as on 31/08/2017 as per
Statement of Account. Thus, from the Account Statement it can
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be inferred that defendant agreed interest @ 12% p.a. Plaintiff
gave notice prior to the institution of suit. Summons for
Judgment is duly served upon defendant, however, defendant
failed to file Affidavit in reply within stipulated time. Plaintiff
claims interest @ 12% p.a. which was agreed by defendant,
therefore, plaintiff is also entitled to interest @ 12% p.a.
7. After institution of suit, defendant appeared, but,
failed to apply leave to defend the suit after service of Summons
for Judgment. As discussed supra, plaintiff's claim is based upon
the Account Confirmation Statements given by defendant.
Plaintiff's claim is well supported by documents filed on record.
Therefore, Summons for Judgment taken out by plaintiff deserves
to be allowed. In the result, following order:
ORDER
1. Summons for Judgment No.267 of 2019 is made absolute.
2. Suit is decreed with costs.
3. Defendant shall pay an amount of Rs.39,90,000/ (Rs.Thirty
Nine Lacs Ninety Thousand only) alongwith interest on principal
amount of Rs.30,00,000/ (Rs.Thirty Lacs Only) @ 12 percent p.a.
from the date of filing of the suit till its realization.
4. Decree thus follow.
5. Summons for Judgment No.267 of 2019 is disposed of
accordingly.
27/09/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on : 27/09/2021
Transcribed on : 28/09/2021
Signed on : 28/09/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
29/09/21 at 04.00 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
27/09/21
Judgment and order signed by P.O. 28/09/21
Judgment/order uploaded on 29/09/21
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