Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010123392019 Presented on 28-11-2019
Registered on 04-01-2020
Decided on 06-10-2023
Duration 03Y: 10M: 8D
Exhibit 08
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 35 OF 2020
Mrs. Radhabai Sandeep Gadge, ]
Aged about 26 years, ]
Occupation Money Lender, ]
R/at Room No.3, Nobel Co-op. ]
Housing Society Ltd. Halav Pool Road, ]
Kurla West Mumbai - 400 070. ]
Through her duly constituted attorney ]
Mr. Sandeep Saibu Gadge ]...Plaintiff
V/s.
Mr. Vilas Dattaram Bhogankar ]
Aged about 53 years, Occupation-Service ]
office address : Water Resources Department, ]
Employee Name (IRMVDBM6701) ]
Designation - Peon, ]
Mantralaya Mumbai – 400032. ]…Defendant
Appearance :
Ld. Advocate Mr. Balbheem Patil for the plaintiff.
Defendant absent (Ex-parte).
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2 Sum Suit No.35/2020
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 06/10/2023.
J U D G M E N T
(Pronouncement and delivered in the open court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of Rs.2,58,000/-. Brief
facts of plaintiff’s case may be summarized as under:
2. The plaintiff does the business of money lending. The
defendant executed in favour of plaintiff a promissory note of
Rs.2,40,000/- dated 15-05-2019 against the loan of Rs.2,40,000/-
received by the defendant from the plaintiff. The defendant had
promised to repay the sum of Rs.2,40,000/- with interest thereon at the
rate of 18% p.a. on demand.
3. According to the plaintiff, the said promissory note was
dishonoured by the defendant. Therefore, the plaintiff issued the
demand notice dated 01-10-2019 through his advocate informing the
defendant of the dishonour of the promissory note and calling upon him
to pay the amount. But inspite of receipt of notice, the defendant failed
and neglected to pay the amount. Hence, the present suit. The plaintiff
prayed for the decree for amount of Rs.240,000/- and interest
Rs.18,000/- aggregating to Rs.2,58,000/- with the further interest @
Rs.18% p.a. on the principal amount of Rs.2,40,000/- from the date of
filing the suit till its full realization.
4. The defendant was served with the writ of the suit
summons. The plaintiff has filed affidavit of service at Exh.4. Despite
service of the suit summons, the defendant has not caused his
appearance and therefore, the suit proceeded ex-parte against him by
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3 Sum Suit No.35/2020
the order dated 24-03-2023.
5. In support of claim, the plaintiff filed affidavit of claim of
Mr. Sandeep Saibu Gadge, constituted attorney of plaintiff at Exh.5 and
reiterated his contention for recovery of Rs.2,58,000/- along with the
further interest at the rate of Rs.18% p.a. The plaintiff has filed and
relied upon the following documents.
Sr. No. Particulars
1 Promissory Note dated 15-05-2019
2 Copy of demand notice dated 01-10-2019
3 Two original postal receipt
4 Original return packet by the postal dept.
5 Money Lender Licence
6 Cash Book and ledger book of loan transaction
6. To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.2,58,000/-
from defendant?
If yes, at what rate of interest?
Yes
Entitled to interest @ Rs. 9%
p.a. on Rs.2,40,000/- from
28-11-2019 the date of filing
of suit till its full realization.
2. What order and decree? As per final order.
R E A S O N S
As to points No.1 & 2:
7. The plaintiff has filed claim affidavit in support of his
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4 Sum Suit No.35/2020
contentions of receipt of promissory note for consideration of
Rs.2,40,000/-. His oral testimony is supported by the original
promissory note dated 15-05-2019. The plaintiff enjoys presumption
under Section 118(a) of Negotiable Instruments Act, 1881, which
supports the contention of the plaintiff that the present promissory note
was executed for the valuable consideration of Rs.2,40,000/-. It is
appearing that the plaintiff is a money lender and he has money
lending licence, and he lend the money Rs.2,40,000/- on the interest at
the rate of Rs.18% p.a. The Demand Promissory Note placed on record
clearly supports this case of the plaintiff.
8. The defendant has not appeared in the matter inspite of
the service of summons from this Court, which gives an inference that
the defendant has nothing to contest and he does not dispute the claim
of the plaintiff. In view of Rule 2 (3) of order XXXVII of CPC, owing to
failure of defendant to cause appearance, it needs to be presumed that
the defendant admits the allegations contained in the plaint. The
Promissory Note is of dated 15-05-2019 for the amount of
Rs.2,40,000/-. Therefore, I hold that the plaintiff is entitled to recover
the principal amount of Rs.2,40,000/- on the strength of promissory
note.
9. It may be seen that the plaintiff has applied the interest
Rs.18,000/- at the rate of Rs.18% p.a. on Rs.2,40,000/- from
15-05-2019 to 15-10-2019. In view of provision of Section 79 of
Negotiable Instruments Act, when the suit is based on promissory note,
the plaintiff can be held entitled to the interest at the agreed rate of
interest i.e. @ Rs.18% p.a. from the date execution of the said
promissory note till filing the suit. Hence, I hold that the plaintiff is
entitled to interest amount of Rs.18,000/-. Thus, the plaintiff is entitled
to recover the total amount of Rs.2,58,000/-.
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5 Sum Suit No.35/2020
10. The plaintiff had agreed to pay the interest at the rate of
Rs.18% p.a. on the amount of Rs.2,40,000/-. Therefore, I am of the
view that the plaintiff can be made entitled to the further interest on the
said amount from the date of filing the suit. The plaintiff has prayed
for the further interest at the rate of Rs.18% p.a. However, I am of the
view that the same is excessive as compared to the rate of interest of
Nationalized Banks. Therefore, having regard to the provision of
section 34 of the CPC, I am of the view that granting the interest at the
rate of Rs.9% p.a. on the principal amount would be just, proper and
reasonable. Hence, I hold that the plaintiff is entitled to interest at the
rate of Rs.9% p.a. on the principal amount, from the date of filing the
suit till its full realization and hence, I answer point No.1 accordingly.
In the result, in answer to point No.2, I proceed to pass following order.
O R D E R
1) Summary Suit No.35 of 2020 is hereby decreed with the costs.
2) The defendant shall pay an amount of Rs.2,58,000/- (Rupees Two
Lakhs, Fifty Eight Thousands only) to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Rs.2,40,000/- at the rate of Rs.9% p.a. from 28-11-2019, the date
of filing of suit till its full realization.
4) The plaintiff is entitled to get refund 2/3rd of the court-fees paid
by him.
5) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date-06-10-2023 Court Room No.61
Mumbai.
Dictated on :06-10-2023
Corrected and signed on: 07-10-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07-10-2023 at 5.30 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
06-10-2023
JUDGMENT/ORDER signed by P. O. on 07-10-2023
JUDGMENT/ORDER uploaded on 07-10-2023
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