Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :03.12.2019
Registered On :06.01.2020
Decided on :02.12.2021
Duration : Y-02/M-00/D-01
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 81 OF 2020
IN
Exhibit-08
M/s. Otarmal Kantilal & Co.
a Registered Partnership Firm carrying on
business at Shop No. 8, Kalyan Building No.2,
Sadashiv Cross Lane, Kandewadi,
Bombay-400 004 through its Partner Mr.
Parasmal Otarmal Jain, Aged about 64 years.
... Plaintiff
V/s.
1. Rajendrakumar Punjaji Gaikwad
(Age not known)
an adult Indian Inhabitant, working for gain
with Municipal Corporation of Greater
Mumbai, Vehicle Home, Transport Department,
1st Floor, Behind BEST Depot, Pantnagar,
Ghatkoper (E), Mumbai- 400 075 and residing
at New Rachana Park Co-Operative Housing
Society, Building No. 303, 3rd Floor, Near St.
Merry School & Flour Mill Naka, Kalyan (East),
Dist- Thane.
2. Yashwant Ramchandra Jadhav
(Age not known)
an adult Indian Inhabitant, working for gain
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Summ. Suit No.81/2020
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with Corporation Bank, Mahapalika Marg
Branch, Behind St. Xavier’s College, Mumbai-
400 001.
... Defendants
SUIT FOR RECOVERY OF MONEY
Appearance:-
Ms. Divya Jain 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 : 02/12/2021
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff are a partnership firm duly registered with the
Registrar of the firms. The defendant no.1 approached to the plaintiff
and on dtd.12.01.2017 for valuable consideration of Rs.40,000/-
received from plaintiff, drew a bill of exchange directing thereby,
defendant no.2 to pay to the plaintiff or Order at Mumbai a sum of
Rs.40,000/- on demand. Said bill of exchange was accepted and
delivered by defendant no.2 to the plaintiff on the same day. On dtd.
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11.02.2017 the plaintiff presented said bill of exchange to the
defendant no.2 and demanded Rs.40,000/-. The defendant no.2 failed
to honour said demand. Similarly, the defendant no.1 also failed and
neglected to pay the amount of Rs.40,000/- . The plaintiff issued letter/
notice to advocate on 25.06.2019 to the defendants calling upon them
to pay the outstanding amount alongwith accrued interest but the
defendants failed to comply with said requisition. The plaintiff averred
that the defendants are liable jointly and severally to pay the
outstanding amount with interest.
3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.59,963/- to the plaintiff and further
interest at the rate of 18% p.a from the date of suit still its realization.
Hence, this suit.
4. The suit summons were duly served on the defendant nos.1
and 2 but they failed to appear. Hence, suit is posted for judgment as
per order XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.59,963/- with
interest
@ 18% per annum
2. What order and decree? As per final order.
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REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Extract of the Registration of the
plaintiff’s Firm with the Registrar
of Firm.
Exh. 7/1
2 Bill of Exchange dated 12th
January, 2017.
Exh.7/2
3 Plaintiff’s Advocates’ letter dated
25th June, 2019, alongwith the
Courier records in respect thereof.
Exh. 7/3
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.06 regarding service of writ of
summons to the defendants. The documents produced on record by the
plaintiff shows that the defendant no.1 received the amount of
Rs.40,000/- from the plaintiff drawing bill of exchange directing
thereby defendant no.2 to pay to the plaintiff or order a sum of
Rs.40,000/- on demand and said bill of exchange has been accepted
and delivered by the defendant no.2 to the plaintiff. Further, it reveals
from the record the said transaction took place on dtd. 12.01.2017,
the notice/letter of demand was issued to the defendants on dtd.
25.6.2019 and the suit is filed on 25.11.2019. As such, the plaintiff’s
claim in the suit is well within limitation.
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8. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has given amount of Rs.40,000/- to
the defendant no.1 on bill of exchange. Said amount is not repaid either
by the defendant no.1 or by defendant no.2. Both the defendants are
liable jointly and severally to pay the outstanding amount of
Rs.40,000/- to the plaintiff. In this background, I have arrived at the
conclusion that the plaintiff is entitled to recover sum of Rs.40,000/-
from the defendants jointly and severally.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.59,963/- and said amount is calculated alongwith
interest at the rate of 18% p.a till the date of filing of the suit. So the
total outstanding amount Rs.59,963/-. Apart from said amount which
is due against the defendant on the date of filing of the suit, the plaintiff
has claimed interest at the rate of 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceed 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 a commercial one and there is contract
existing between the parties as to the rate of interest which shall be
levied. As per the agreed terms defendant is liable to pay the interest at
the rate of 18% p.a. Therefore, I hold, the rate of interest at the rate of
18% per annum would be just and proper to be awarded on the
principal sum adjudged i.e. amount of Rs.40,000/-. Hence, point no.1 is
answered in the affirmative.
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AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.59,963/-from the defendant
nos. 1 and 2 jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.40,000/- from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendants. Hence, in answered to point no.2, I proceed to
pass the following order.
ORDER
1. The defendant nos.1 and 2 shall pay Rs.59,963/- (Rs.
Fifty Nine Thousand Nine Hundred Sixty Three Only)
to the plaintiff jointly and severally, with interest at
the rate of 18% per annum on the principal sum of
Rs.40,000/- from the date of filing of the suit till its
realization.
2. The defendant nos. 1 and 2 do pay costs of the suit to
the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 02/12/2021 Gr. Bombay
Dictated on : 02/12/2021
Typed on : 02/12/2021
Signed on : 02/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/12/2021 05.40 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
02/12/2021
JUDGMENT/ORDER signed by
P.O.on
02/12/2021
JUDGMENT/ORDER uploaded on 02/12/2021
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