Final Order 1

Order Details: Other
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MHCC010047552021
Presented on : 08072021
Registered on : 08072021
Decided on : 31082021
Duration : Y M D
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BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
SUMMONS FOR JUDGMENT NO.64 OF 2021
IN
COMMERCIAL SUIT NO.493 OF 2021
(SUMMARY SUIT NO.14 OF 2020)
Saryu Mahendra Gandhi,
Aged 66 years, Indian Inhabitant,
Residing at 4/21 Sagar Kunj, 78,
Napeansea Road, Mumbai400 006. ..Plaintiff
V/s
M/s.Sambhav Corporation,
A Partnership Firm registered under the
Indian Partnership Act, 1932,
Having its address at TP29FP25,
Jash Residency, B/H Jolly Residency
Vesu, Surat, Gujarat395 007. ..Defendant
_____________________________________________________
Ld. Advocate K.D.Shah for plaintiff.
DefendantEx parte.
______________________________________________________
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ORAL ORDER
(Dated this 31st day of August, 2021)
1. Summary suit is filed for recovery of an amount of
Rs.95,87,000/ under order XXXVII, Rule 2 of C.P.C.
2. Defendant tendered his appearance on 01/02/2020.
Thereafter, plaintiff has taken out Summons for Judgment. Leave
to serve Summons for Judgment is granted on 05/07/2021.
Summons for Judgment was served upon defendant on
13/07/2021. Plaintiff filed affidavit of service of Summons for
Judgment on 30/07/2021. Inspite of service of Summons for
Judgment, defendant failed to file affidavit in reply within time
provided by Civil Procedure Code.
3. Plaintiff submitted that she is a housewife.
Defendant is a registered Partnership firm. Defendant engaged in
the business of construction. Hitesh Jariwala, partner of the
defendant firm, approached plaintiff for hand loan. Defendant
represented that the firm is constructing multistorey building at
Vesu, Surat and for that purpose it requires money. Defendant
promised to pay interest @ 9% p.a. Pursuant to the defendant's
representation, plaintiff advanced loan of Rs. 30 lacs by RTGS.
Defendant started paying interest @ 9% p.a. On 31/03/2019,
defendant issued Ledger Confirmation.
4. Plaintiff further submits that she advanced further
loan of Rs.25 lacs on 03/04/2018 and loan of Rs.35 lacs on
19/09/2018 by RTGS. Defendant also paid interest @ 9% p.a.
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till 31/03/2019. On that day, defendant also issued Ledger
Confirmation. Defendant paid amount of Rs.2.5 lacs towards the
principal amount. Thus, total principal amount outstanding
against the defendant is Rs.87.50 lacs. Defendant failed to pay
interest after 31/03/2019. Plaintiff issued notices dated
11/11/2019 through advocate asking defendant to make payment
of the outstanding amount.
5. As stated above, Summons for Judgment was duly
served upon defendant, but, defendant failed to file affidavit in
reply within time provided by The Civil Procedure Code. Plaintiff
submits that she has paid entire amount of hand loan by RTGS
from her account to the bank account of defendant. She has given
details of the bank. Plaintiff's claim is based upon Ledger
Confirmations dated 31/03/2019 signed by defendant. The
Ledger Confirmation constitutes an implied promise to pay the
amount mentioned therein. Plaintiff's claim is exactly in
consonance with the Ledger account confirmations made by
defendant. Claim includes principal amount of Rs.87.50 lacs and
interest of Rs.7,95,000/ and Rs.42,000/. Plaintiff claimed
interest @ 9% p.a. From the Ledger Account confirmations, it can
be safely inferred that defendant agreed to pay interest @ 9% p.a.
Therefore, plaintiff is entitled to the interest as prayed for. As
stated above, defendant failed to apply for leave to defend the
suit within stipulated period after service of summons for
judgment. There is no counter version on oath which competes in
probability within time after service of Summons for Judgment.
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Therefore, plaintiff is entitled to the decree as prayed for. In the
result, following order:
ORDER
1. Summons for Judgment No.64 of 2021 is made absolute.
2. Suit is decreed with costs.
3. Defendant shall pay an amount of Rs.95,87,000/
(Ninety Five Lacs Eighty Seven Thousand only)
alongwith interest on principal amount of
Rs.87,50,000/(Eighty Seven Lacs Fifty Thousand
only)@ 9% p.a. from the date of filing of the suit
till it's realization.
4. Decree thus follow.
31/08/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 31/08/2021
Transcribed on : 31/08/2021
Signed on : 31/08/2021
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
31/08/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
31/08/21
Judgment and order signed by P.O. 31/08/21
Judgment/order uploaded on 31/08/21
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