Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010129312019
Presented on : 09-12-2019
Registered on : 06-01-2020
Decided on : 24-03-2021
Duration : 1 years, 3 months, 15 days
EXH. 08
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.88 OF 2020
(Under Order XXVII Of The Code Of Civil Procedure 1908)
Deepak Shankar Pawar
age 38 years,
having his address at 21, Block No.1
Jai Shankar Chowk, Halao Pul Road
Opp. Rolex Hotel, Kurla (West)
Mumbai - 400 070. ...Plaintiff.
V/s.
Kishore Tabhji Maru
age not known, of Mumbai an adult Indian
Inhabitant working for gain with Municipal
Corporation of Greater Mumbai Office at the
V.N. Desai Municipal General Hospital Santacruz,
East E.C. 4351607, RS No. A5211,
Mumbai - 400 055. and residing at Room
No. 06/01, Edward House, Khalai Village,
Near Indira Nagar, Kirol Road,
Vidhyavihar (West), Mumbai - 400 086
....Defendant.
Appearances:
Ld. Adv Mr. Ramesh Jain for plaintiff.
None present for defendant.
Suit proceeded ex-parte against defendant.
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CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.13)
DATED : 24th March, 2021
J U D G M E N T
(Ex-parte)
1. This is a suit for recovery under Order 37 Rule 2 of the
Code of Civil Procedure.
2. In brief, it is contention of the plaintiff that, plaintiff lent an
advanced to the defendant sum of Rs.2,50,000/- (Rs. Two Lakh Fifty
Thousand only) on 02-08-2018. Defendant executed Demand Promisory
note in favour of the plaintiff and promised to pay to the plaintiff said
amount of Rs.2,50,000/- alongwith interest thereon at the rate of 18%
per annum on demand.
3. Plaintiff time to time demanded the money from the
defendant but defendant failed and neglected to pay the said amount
and interest.
4. The plaintiff demanded said amount and interest by issuing
his Advocate’s letter dated 26-09-2019 to the defendant but in vain.
5. Defendant served with Writ of Summons on 20-02-2020 as
per baillif report. Defendant did not appear. Hence, suit is proceeded
Ex-parte against the defendant as per roznama/noting dated 16-02-
2021.
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6. Plaintiff filed affidavit of claim Exh.4 and compilation of
documents with list Exh.5.
7. I have heard Learned Advocate Mr. Ramesh Jain for the
plaintiff. Plaintiff stated in the affidavit of claim Exh.4 as per averments
of the plaint.
8. Perused Demand Promissory Note Exh.6. It is dated 02-08-
2018. An amount of Rs.2,50,000/- (Rs. Two Lakh Fifty Thousand only)
is mentioned therein. Rate of interest is 18% (Eighteen) per annum
mentioned therein. Plaintiff filed original Demand Promissory Note and
plaintiffis Advocate letter dated 26-09-2019. They are at Exh.6 and 7
colly. respectively.
9. Perused Notice/ Letter of Demand dated 26-09-2019 Exh.6.
Plaintiff demanded the said amount by the said demand notice from the
defendant.
10. Perused Order 37 Rule 2 and Sub Rule (3) of the Code of
Civil Procedure. As per the said Sub Rule, the defendant shall not
defend the suit referred in sub-rule (1) of Rule 2 of Order 37 of the
Code of Civil Procedure unless he enters an appearance and in default
of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for
any sum, not exceeding the sum mentioned in the summons, together
with interest at the rate specified, if any, up to the date of the decree.
11. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
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the plaint and annextures thereto to the defendant, as per Rule 2 of
Order 37 of the Code of Civil Procedure and the defendant may at any
time within ten days from such service enter an appearance either in
person or by pleader and he shall file in Court an address for services of
Notice on him.
12. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
13. The proviso of Section 34 of the Code of Civil procedure
states that where the liability in relation to the sum so adjudged had
arisen out of a commercial transaction, the rate of such further interest
may exceed six percent per annum, but shall not exceed contractual
rate of interest or where there is no contractual rate, the rate at which
moneys are lent or advanced by Nationalized Banks in relation to
Commercial transactions.
14. Inspite of service of writ of summons defendant did not
enter his appearance within 10 days from the date of Writ of Summons,
therefore, the suit is proceeded Ex-parte. There is nothing on record to
discard the contentions of the plaintiff. In view of Order 37 Rule 2 Sub
Rule (3) of Civil Procedure Code, the allegations in the plaint shall be
deemed to be admitted as the defendant did not appear. Hence plaintiff
is entitled for recovery of amount of Rs.2,50,000/- (Rs. Two Lakh Fifty
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Thousand only) from the defendant. Considering the transaction
between the plaintiff and defendant, I am of the opinion that plaintiff is
entitled to charge interest at the rate of 9% (Nine) per annum on a sum
of Rs.2,50,000/- (Rs. Two Lakh Fifty Thousand only) from the
defendant from 02-08-2018 till its full realization. Hence, I proceed to
pass the following order.
ORDER
Summary Suit no. 88 of 2020 is decreed with costs as under-
1. Defendant do pay a sum of Rs.2,50,000/- (Rs. Two Lakh Fifty
Thousand only) to the plaintiff with interest at the rate of 9 (nine)
percent per annum on amount of Rs.2,50,000/- from the date of 02-08-
2018 till its full realisation.
2. Court fee be refunded to the plaintiff if any as per rules.
3. Decree be drawn up accordingly.
4. Judgement dictated and pronounced in open court.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 24/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 24/03/2021
Transcribed on : 24/03/2021
Checked on : 24/03/2021
and Signed on : 25/03/2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.03.2021 at 03.00 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 24.03.2021
Judgment/order signed by P.O. on 25.03.2021
Judgment/order uploaded on 26.03.2021
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