Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :22.11.2019
Registered On :17.12.2019
Decided on :12.01.2022
Duration : Y-02/M-01/D-21
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 1286 OF 2019
CNR NO.- MHCC01-011994-2019
Exhibit -03
Manohar Khandu Kalbhor
Age: 45 years.
Carrying on business at Patra Chawl,
Near Gujarathi School, Subhash Nagar,
New Mill Road, Kurla (W), Mumbai- 400 070. ... Plaintiff
V/s.
Subhash Waman Misal
adult, working for gain with
BMC Office , M/E Ward, Emp CD-03976885,
Dept. Consy; Position -30047158,
M.T. Kadam Marg, Devnar ,
Mumbai- 400 043 and residing at Devnar
Municipal Transit Camp, Room No, 112,
Shivaji Nagar, Govandi, Mumbai – 400 043. ... Defendant
Appearance:-
Mr. Rajesh Patil Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 12/01/2022
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Summ. Suit No.1286/2019
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JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff is doing business of money lending. The
defendant approached to him for loan. Hence, on 17.7.2018, the
defendant executed a Demand Promissory Note in favour of the plaintiff
for valuable consideration being a sum of Rs.2,50,000/- received by the
defendant from the plaintiff against and on the basis of execution and
handing over of the said Demand Promissory Note. By the said demand
promissory Note the defendant promised to pay to the plaintiff said sum
of Rs.2,50,000/- alongwith interest thereon @18% p.a. on demand. The
defendant thereafter failed and neglected to repay the amount as per
the stipulation and promise given in the demand promissory note.
Hence, after waiting for sufficient time, the plaintiff issued advocate’s
letter dtd. 24.8.2019 calling upon the defendant to make the repayment
of the outstanding amount. However, the defendant failed to comply
with the letter. The due and payable amount against the defendant
alongwith 18% interest is Rs.2,95,000/-. Said amount is not paid by the
defendant. Hence, plaintiff is constrained to file the suit for recovery of
the said amount.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
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4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendant as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.2,95,000/- with
interest
@ 18 % per annum on
principal amount of
Rs.2,50,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.02 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Demand Promissory note of
Rs.2,50,000/- dtd. 17.7.2018
Exh. 2/1
2 Notice of demand dtd. 24.8.2019 Exh. 2/2
3 Xerox Copy of Money Lending
Licence year 2018-2019
Exh.2/3
4 Xerox copy of Form no. 10 Exh.2/4
5 Xerox copy of Cash entry Exh.2/5
6 Xerox copy of Leger entry Exh. 2/6
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded under
order XXXVII of C.P.C as the same is not contested by the defendant. The
plaintiff has to establish the entitlement for the monetary relief,
undoubtedly, as per the procedure laid down in order XXXVII C.P.C,
once the suit is not contested by the defendant, the plaintiff is entitled
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for the relief claimed in the suit plaint. Here, the plaintiff has produced
above referred documents including his money lending licence, which
made him entitle to lend money.
7. All the documents produced by the plaintiff at Sr.No.1 to 6 goes
to establish that plaintiff has given amount of Rs.2,50,000/-to the
defendant. The documents further prove that the amount of
Rs.2,95,000/- is due and payable to the plaintiff from defendant
towards the amount. The defendant have failed to repay the said
amount to the plaintiff. The documents at Sr.No.1 to 6 goes to establish
that the defendant is liable to pay Rs.2,95,000/- to the plaintiff on the
date of filing of the suit towards the said amount. He failed to comply
with the demand letter. In this background, it is held that plaintiff is
entitled to recover sum of Rs.2,95,000/- from the defendant.
8. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial
and there is no contract pertaining to the same between the parties. In
the present case, the transaction is commercial one and there is contract
existing between the parties as to the rate of interest which shall be
levied. The agreed rate of interest is 18% p.a hence, I hold that, the
transaction being commercial one and the agreed rate of interest is @
18% per annum, said rate of interest of 18% p.a would be just and
proper to be awarded on the principal sum adjudged i.e. amount of
Rs.2,50,000/-. Hence, point No.1 is answered in the affirmative.
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AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.2,95,000/- from the defendant
with interest on principal amount of Rs.2,50,000/- at the rate of 18%
per annum from the date of filing of the suit till its realization. Plaintiff
is also entitled to recover cost of the suit from defendants. Hence, in
answered to point No.2, I proceed to pass the following order.
O R D E R
1. The defendant shall pay Rs.2,95,000/- (Rs. Two Lakhs
Ninety Five Thousand Only) to the plaintiff with interest
on principal amount of Rs.2,50,000/- at the rate of 18%
per annum from the date of filing of the suit till its
realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :12/01/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :12/01/2022
Typed on :12/01/2022
Signed on : 12/01/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/01/2022 04.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
12/01/2022
JUDGMENT/ORDER signed by
P.O.on
12/01/2022
JUDGMENT/ORDER uploaded on 12/01/2022
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