Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.1285/2019
MHCC010120182019 Presented on : 22/11/2019
Registered on : 17/12/2019
Decided on : 01/08/2023
Duration : 03Y 08M 10D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.11
SUMMARY CIVIL SUIT NO.1285 OF 2019
Manohar Khandu Kalbhor,
Indian Inhabitant, carrying on business at Patra
Chawl Near Gujrathi School, Subhash Nagar,
New Mill Road, Kurla (W), Mumbai – 400 070.
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] ..Plaintiff
V/s.
SUBHASH WAMAN MISAL,
Adult, working for gain with B.M.C. 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.
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] ..Defendant
Appearance :-
Mr. Rajesh Patil, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 01/08/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.2,95,000/- under the demand promissory note. The plaintiff has
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come with the case that he has advanced loan of Rs.2,50,000/- to the
defendant, who executed demand promissory note on 24/06/2018.
The defendant had agreed to pay the amount of Rs.2,50,000/- on
demand alongwith interest at the rate of 18% per annum. However,
defendant did not pay the loan amount, therefore, the plaintiff is
entitled for recovery of amount alongwith interest at the rate of 18%
per annum.
2 The writ of summons was served upon the defendant vide
Exh-05. Defendant has accepted the service but refused to sign the
acknowledgment. He failed to appear before the Court, hence, suit
proceeded ex-parte as per
roznama dated 17/06/2023.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the defendant
has executed demand promissory note of
Rs.2,50,000/- ?
Affirmative
2 Does the plaintiff prove that he is entitled to
charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
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R E A S O N S
4 In order to substantiate the contentions, the plaintiff
entered into the witness box and relied on various documents under
list (Exh-07). Heard learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The plaintiff has tendered his Claim Affidavit (Exh-06)
alongwith documents as per list (Exh-07). On perusal of demand
promissory note, it reveals that it bears signature and thumb
impression of the defendant. Inconsequence of failure to pay the
amount under the demand promissory note, the plaintiff has issued
notice on 24/08/2019. Thus, the plaintiff is entitled for recovery of
amount under the demand promissory note. The plaintiff is a money
lender having license bearing No.RBE-1417, hence, he is entitled to
recover the amount as a money lender. He filed other documents
related to his license and copy of form and cashbook. Thus, it is
established that the defendant has executed the demand promissory
note for Rs.2,50,000/-.
6 There is nothing on record to show that the defendant has
ever paid any amount under the demand promissory note. His absence
and omission to appear before the Court on being served with the writ
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, the plaintiff is entitled to
recover the amount under the demand promissory note.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant, however, I
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am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, he would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default i.e. notice
of advocate dated 24/08/2019, till its full realisation. In view of above
discussions, I answer point No.1 in affirmative and point Nos.2 and 3
in partly affirmative.
8 As the defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
ORDER
1. Summary Civil Suit No.1285/2019, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.2,50,000/- alongwith interest at the rate of 9% per
annum, from the date of default i.e. notice of
advocate dated 24/08/2019, till its full realisation
from the defendant.
3. Decree be drawn up accordingly.
4. Court fees, if any, be refunded as per rule.
(Judgment pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 01/08/2023 C.R. No.15
Directly typed on : 01/08/2023
Signed on : 01/08/2023
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“Certified to be true and correct copy of the original signed order”.
02/08/2023
at about 05.35 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 01/08/2023
Order signed by Hon'ble Judge on : 01/08/2023
Order uploaded on : 02/08/2023
at about 05.35 p.m.
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