Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010126822019 Presented on 04-12-2019
Registered on 06-01-2020
Decided on 02-09-2023
Duration 03Y :8M :29D
Exhibit 07
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 65 OF 2020
Saryu Mahendra Gandhi ]
Aged 66 years, Indian Inhabitant, ]
Residing at 4/21 Sagar Kunj, 78, ]
Napeansea Road, Mumbai-400 006. ]...Plaintiff
Versus
Vipin Indermal Jariwala, ]
An Indian Inhabitant, having his ]
Address at A/402 Malabar Hill Apt, ]
B/H Sargam Shopping Center, ]
Umara, Surat, Gujarat-332710. ]...Defendant.
Appearance :
Ld. Advocate Mr. K.D.Shah for plaintiff.
None for defendant (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 02-09-2023
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2 Sum Suit No.65/2020
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.21,05,000/- along with interest thereon at the rate of 09% per
annum till its realization.
2. The plaintiff is a housewife and the defendant is a partner
of a firm M/s. Sambhav Corporation who is a Builder and Developer.
According to the plaintiff, pursuant to the representation made by the
defendant that his firm is constructing a multistorey building at Vesu,
Surat and told that he requires a friendly loan for the construction and
promised to repay with the interest @ Rs.9% p.a., the plaintiff
advanced to the defendant a sum of Rs.20,00,000/- on 10th April, 2018
by RTGS from her account in Indusind Bank, Opera House Branch.
3. According to the plaintiff, the defendant paid the interest
on the said amount upto 31-03-2019. However, thereafter he failed to
pay any interest on the said amount. She repeatedly called upon the
defendant to pay the same, but the defendant gave evasive replies.
Therefore, she issued a demand notice dated 11-11-2019 through her
advocate and called upon the defendant to pay the amount, but in
spite of receipt of notice, the defendant failed and neglected to pay the
amount. Hence, the present suit. The plaintiff prayed for the decree
for the amount of Rs.21,05,000/- with further interest @ Rs.9% p.a.
on the principal amount of Rs.20,00,000/- from the date of filing the
suit till its full realization.
4. In response to the Writ of Summons, the defendant
caused appearance. However, he failed to file reply to Summons for
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3 Sum Suit No.65/2020
Judgment and failed to seek leave to defend the suit. The Affidavit of
Service of Summons for Judgment is already tendered on record. As
such the defendant has chosen not to contest the Summons for
Judgment.
5. In support of claim, the plaintiff has filed the compilation
of documents at Exh.6.
Sr. No. Particulars
1 Pass book containing relevant entry showing transferring
Rs.20 lakhs to defendant, A/c.No.151003011953 in Opera
House Branch of Indusland Bank, Mumbai.
2 Confirmation letter 1st April, 2019, confirming the amount
of Rs.21,75,000/- due to the plaintiff in the books of the
Account of the defendant.
3 Copy of plaintiff’s advocate’s letter dated 11-11-2019 to
the defendant demanding the amout of Rs. 20,00,000/-
with interest due to the plaintiff.
6. To decide the present suit, following points arose for my
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.21,05,000/-
from the defendants?
If yes, at what rate interest?
Partly yes.
Entitled to recover
Rs.20 lakhs with simple
interest at the rate of
Rs.6 % p.a. from the date
of filing the suit till its full
realization.
2. What order and decree? As per final order.
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4 Sum Suit No.65/2020
REASONS
As to points No.1 & 2:
7. After receipt of the writ of summons, the defendant
appeared and then summons for judgment was served on him.
However, the defendant failed to file the reply to the summons for
judgment i.e. he failed to seek leave to defend the suit. Sub-rule 6 (a)
of Rule 3 of order 37 of CPC provides that if the defendant has not
applied for the leave to defend, the plaintiff shall be entitled to the
judgment forthwith. In view of this provision, there is no need to
make the threadbare discussion in respect of the merits of the
plaintiff’s case to hold the plaintiff entitled for the principal amount of
Rs.20,00,000/-.
8. It may be seen that the plaintiff gave the hand loan of
Rs.20 Lakhs to the defendant, and the defendant failed to repay the
said amount. The plaintiff has placed on record the original pass-book
to show that the amount of Rs.20 Lakhs was transferred in the account
of the defendant by RTGS. It is also appearing from the document
placed on record that the receiving of the said amount was confirmed
by the defendant by the letter of confirmation dated 01-04-2019.
Therefore, I hold that the plaintiff’s case is well supported by the
document and therefore, she is entitled to recover the amount of Rs.20
Lakhs from the defendant.
9. It may be seen that the plaintiff has claimed the interest
Rs.1,05,000/- at the rate of Rs.9% p.a. for the period from 22-10-2019
till the date of filing the suit. However, it is not appearing that there
was any agreement between the plaintiff and the defendant in respect
of the payment of the interest. No details/particulars are given in the
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plaint in respect of the payment of the interest at any point of time by
the defendant. Therefore, I hold that the plaintiff is not entitled to the
interest as claimed by her till filing the suit. However, having regard
to the provision of section 34 of the CPC, the plaintiff can be made
entitled to the further simple interest at the rate of Rs.6% p.a. from the
date of filing the suit till its full realization and therefore, I answer
point No.1 accordingly. In the result, I answer to point No.2, I proceed
to pass the following order.
O R D E R
1] The suit is partly decreed with costs.
2] The defendant shall pay to the plaintiff the amount of
Rs.20,00,000/- (Rupees Twenty Lakhs only).
3] The plaintiff is entitled to simple interest on the amount of
Rs.20,00,000/- at the rate of Rs.6 % p.a. from 04-12-2019, the
date of filing the suit till its full realization.
4] The plaintiff is entitled to get refund 2/3rd of the court fees paid
by it.
5] The decree shall be drawn accordingly.
6] In view of above, SJ No.42/21 is disposed of accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date: 02-09-2023 Court Room No.61
Mumbai.
Dictated on: 02-09-2023
Corrected & signed on :02-09-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-09-2023 at 1.45 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
02-09-2023
JUDGMENT/ORDER signed by P. O. on 02-09-2023
JUDGMENT/ORDER uploaded on 04-09-2023
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