Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010120562019
Presented on 18032019
Registered on 22112019
Decided on 11/11/22
Duration Year Month Days
03 07 24
CNR No. MHCC010120562019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1147 OF 2019
Mr. Maq Ali, Anwar Ali Shaikh
Age: 36 years, Occ: Driving,
residing at Grand Floor, R169/33,
Vijay Nagar, Sanghshaikh Misree Road,
Antop Hill,
Mumbai 400 037. ...Plaintiff.
V/s.
Mr. Babasaheb Nana Chandanshive,
Age: 55 years, Occ: retired
2/7, Ganesh Colony, Nr. Oarna Dairy,
Khadegolwadi, Vitthalwadi (E),
Kalyan, Pin – 421 306
Mob98777400. ...Defendant.
M
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Appearances:
Ld. Adv. Mr. Prakash Sutar for plaintiff.
None present for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED :11th November, 2022
J U D G M E N T
(Exparte)
1. The present Summary Suit is filed by plaintiff for recovery
of sum of Rs.5,70,000/ alongwith further interest at the rate of 18%
per annum on the principal amount of Rs.3,00,000/ from the date of
filing of the suit till its realization.
2. The facts in brief are as follows:
The plaintiff is having friendly relation with defendant.
The defendant requested the plaintiff for a friendly loan as he was
facing financial problem in his business. The plaintiff considered his
friendly relations and good terms with defendant and he advanced
friendly loan of Rs.3,00,000/ to the defendant on 30.01.2014. The
defendant executed promissory note in respect of the friendly loan and
undertook to repay the amount before 25.08.2014. Thereafter, the
defendant failed to repay the loan and therefore, the plaintiff issued
legal notice to the defendant. The defendant gave false reply to the
notice. The defendant failed to comply the notice and therefore, the
plaintiff filed the present suit and prayed for recovery of the amount
alongwith interest and prayed to decree the suit.
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3. The defendant was duly served but he failed to appear and
therefore, suit was proceeded Exparte against the defendant as per
order dated 30.08.2021.
4. The plaintiff in order to prove his claim filed affidavit of
evidence vide Exh.3. He filed the compilation of documents vide Exh.4.
The plaintiff filed the promissory note, notice dated 29.03.2018 and
reply of the defendant and rejoinder issued by the plaintiff vide Exh.5 to
Exh.8.
5. Heard the arguments advanced by the Learned Advocate
for plaintiff. Advocate for plaintiff relied upon AIR 1973 Bombay 163
in the case of Rachandra Vinayak Badamikar Vs. Paygonda
Sargonda Patil.
6. After going through the submission and the documents
filed by the plaintiff, it seems that as per Exh.5 the plaintiff advanced a
friendly loan to the defendant. Exh.5 bears the signature of plaintiff as
well as of the defendant. The defendant confirmed the receipt of
Rs,3,00,000/ and also agreed to repay the same within the six months
from the date of the promissory note. However, the defendant failed to
repay the loan. The plaintiff issued legal notice to the defendant vide
Exh.6 calling upon the defendant to repay the amount. The defendant
in the reply notice admitted that the plaintiff has advanced a sum of
Rs.2,00,000/ on 30.01.2014 and Rs.1,00,000/ on 05.02.2014 to the
defendant in presence of two witnesses. He also admitted the execution
of promissory note dated 30.01.2014. However, he stated that he had
repaid the friendly loan on 15.12.2016 in presence of four witnesses. It
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therefore, seems that the defendant admitted his liability. The
defendant in the reply notice raised contention that he repaid the loan.
The documents filed by the plaintiff shows that the loan was paid by the
plaintiff to which defendant admitted, however, the defendant failed to
rebutt the evidence of plaintiff. The defendant failed to appear and
challenge the oral and documentary evidence of plaintiff. The plaintiff
proved that he had advanced a friendly loan. The defendant
acknowledged the friendly loan in the reply notice giving rise to further
cause of action and limitation in filing the suit. However, the defendant
failed to adduce any evidence to show that he had repaid the friendly
loan. The defendant remained absent and therefore, it seems that he
admitted the claim of plaintiff. The plaintiff has proved that a loan was
advanced to the defendant and therefore, plaintiff is entitled for the
recovery of the said amount.
7. The plaintiff is claiming the interest at the rate of 18% per
annum on the principal amount. The plaintiff has also calculated the
amount of Rs.2,70,000/ towards the interest till the filling of the suit.
It seems that as per the contention of plaintiff himself it was a friendly
loan. There is no averment regarding the interest on the friendly loan
in the document vide Exh.5 and therefore plaintiff would not be entitled
for the interest till the filing of the suit. The plaintiff is however,
entitled for interest at the rate of 9% per annum from the date of filing
of the suit till its realization. I, therefore, proceed to pass the following
order:
ORDER
1. The Summary Suit No.1147 of 2019 is decreed with costs.
2. Defendant shall pay the amount of Rs.3,00,000/ (Rupees Three Lacs
only) to the plaintiff along with interest at the rate of 9 percent per
annum from the date of filing suit till its actual realization.
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3. Decree be drawn up accordingly.
4. Court fee if any be refunded as per rules to the plaintiff.
5. Judgment is dictated and pronounced in open court.
R and P be sent to Record Department.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 11112022 City Civil Court, Gr. MUMBAI
Dictated on : 11112022
Transcribed on : 14112022
checked on : 15112022
Signed on : 15112022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.11.2022 at 05.30 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of
judgment/order
11.11.2022
Judgment/order signed by P.O. on 15.11.2022
Judgment/order uploaded on 15.11.2022
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