Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010119742019 Presented on : 22-11-2019
Registered on : 06-01-2020
Decided on : 28-07-2022
Duration : Y M D
02 08 06
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.411 OF 2021
Ex.15
Navin H Shah HUF
Through his karta Navin H. Shah
Age 77 years, Occ: Business
Residing at Flat No. 201,
Unique Apartment, S. V. Road, Irla,
Vile Parle West, Mumbai 400 056,
represented Through POA holder,
Manish Jagdish Chheda
Age 44 years. Occ: Business
Residing at: 3/10, Mayfair Building,
Mumbai400 020. ..Plaintiff
VERSUS
1. Chheda Cargo Carrier, Partnership
Firm, Having office at Shop No.6,
Trishla Building P. K. Road,
Mulund West, Mumbai 400 080
And F2, Parasnath Complex,
Parasnath Complex Road, Val Village,
Dapode, Bhiwandi421302.
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2. Jitesh Chheda, Indian Inhabitant,
having office at F2, Parasnath Complex,
Parasnath Complex Road, Val Village,
Dapode, Bhiwandi421302.
3. Nilesh Bharani of Indian Inhabitant
having Office at 803 Ekta Society, B wing,
Plot No.79 Tilak Nagar, Chembur, Mumbai
400 089 and Room No.5, Shardasadan,
1st Floor, Plot No.7, S C Marg, Dadar(E)
Mumbai400 014. ..Defendants
________________________________________________________
Ld. advocate Priya Rombade along with Adv. Aditi Motwani i/b
Deven Dwarkadas for plaintiff.
DefendantsExparte.
________________________________________________________
JUDGMENT
(Delivered on this 28th day of July, 2022)
Suit is for recovery of an amount of Rs.8,36,250/
alongwith further interest.
Plaintiff's case is as under :
2. Plaintiff is 'Karta' of H.U.F. Defendant No.1 is a
Partnership Firm engaged in the business of 'Cargo Carrier'.
Defendant no.2 and 3 are partners of defendant No.1 partnership
firm. In March 2015, partners of defendant No.1 Firm
approached plaintiff and asked for financial assistance of
Rs.6,00,000/ for maintaining their business. Defendants also
agreed to pay interest at the rate of 1.25% p.m. Relying upon
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representation made by defendants, on 30/03/2015, plaintiff
advanced a loan of Rs.6,00,000/ by cheque bearing No.140095
drawn on ICICI Bank Limited, Andheri Branch to defendants. In
consideration of said loan amount, defendant no.1 issued
promissory note of Rs.6,00,000/ on the same day and promised
to pay said amount along with interest at the rate of 1.25% p.m.
Defendants also paid agreed interest to plaintiff till 31st March,
2017. However, defendants failed to pay interest thereafter. On
10/01/2019, plaintiff sent notice through advocate, but,
defendants have not responded to said notice. Inspite of service
of notice, defendants failed to pay the outstanding amount.
Hence, this suit.
3. As per service affidavit (Ex.7), defendant No.1 was
duly served with writ of summons, but, it failed to tender it's
appearance. As per service affidavit (Ex.10 and Ex.11), defendant
No.2 was duly served with writ of summons, but, he failed to
tender his appearance. Suit proceeded without appearance of
defendant Nos.1 and 2.
4. Defendant No.3 appeared. Thereafter, plaintiff has
taken out Summons for Judgment No.01 of 2022. As per order
passed in Summons for Judgment No.01/2022 dated
14/02/2022, conditional leave to defend the suit was granted to
defendant No.3. However, defendant No.3 failed to comply
condition of deposit of an amount of Rs.6,00,000/ within 10
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weeks. Defendant No.3 failed to deposit the said amount. Hence,
suit proceeded exparte against defendant No.3 by order dated
04/05/2022.
5. Heard Ld. advocate for plaintiff.
6. Following points arise for determination, findings
thereon for the reasons to follow, are as under:
Sr. No. Points Findings
1. Does the plaintiff prove that an
amount of Rs. 8,36,250/ is
outstanding against
defendants ?
Proved
2. What order? Suit is decreed as per
final order.
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff has filed
claim affidavit at Ex.13. Plaintiff relied upon documents under
list Ex.14.
8. PW1 Manish Jagdish Chheda has reiterated all the
facts pleaded in his claim affidavit. Plaintiff testifies that Plaintiff
is 'Karta' of H.U.F. Defendant No.1 is a Partnership Firm engaged
in the business of 'Cargo Carrier'. Defendant no.2 and 3 are
partners of defendant No.1 partnership firm. In March 2015,
partners of defendant No.1 Firm approached plaintiff and asked
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for financial assistance of Rs.6,00,000/ for maintaining their
business. Plaintiff's claim is well supported by Bank Statement
which shows that on 30/03/2015, plaintiff advanced a loan of
Rs.6,00,000/ by cheque bearing No.140095 drawn on ICICI Bank
Limited, Andheri Branch to defendants. Plaintiff has also filed on
record demand promissory note which shows that defendants
agreed to pay a sum of Rs.6,00,000/ on demand by plaintiff.
Defendants have also agreed to pay the interest @ 1.25% p.m.
Plaintiff's claim, which is well supported by documents filed on
record, remain unchallenged. Therefore, plaintiff's claim under
Order 37 Rule 2 of C.P.C. is required to be accepted.
9. Plaintiff claimed interest at the rate of 1.25% p.m.
i.e. 15% p.a. from 31/03/2017. It is an agreed rate of interest.
Plaintiff by applying interest at the rate of 1.25% p.m. claimed an
amount of Rs.8,36,250/. He is entitled for the same. Point No.1
is answered accordingly.
10. Plaintiff has claimed interest at the rate of 1.25%
p.m. from the date of filing suit till its realization. Defendants
have agreed to pay interest at the rate of 1.25 % p.m. i.e. 15%
p.a. Considering the nature of transaction, plaintiff is entitled to
get interest at the rate of 15% p.a. from the date of filing of suit
till its realization. In the result, following order:
ORDER
1.Commercial Suit No. 411 of 2021 is decreed with
costs.
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2. Defendants shall pay an amount of Rs. 8,36,250/
(Rupees Eight Lacs Thirty Six Thousand Two Hundred
Fifty only) alongwith interest @ 15 % p.a. on principal
amount of Rs.6,00,000/ to plaintiff from the date of
the suit till its realization within two months.
3. Court fees be refunded as per (E) Rules framed under
Section 11(2) of the Bombay City Civil Court Act, 1948,
for the refund of Institution Fee.
4. Decree thus follow.
28/07/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 28/07/2022
Transcribed on : 28/07/2022
Signed on : 30/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30.07.2022 5.20 pm Tanushree C.Kamble
Name of the Judge HHJ Shri S.U.HAKE
(CR No.14)
Date of Pronouncement of
Judgment/Order.
28.07.2022
Judgment/order signed by P.O on 30.07.2022
Judgment/order uploaded on 30.07.2022
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