Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010129332019
Filed on :09.12.2019
Registered On :06.01.2020
Decided on :21.01.2022
Duration : Y-02/M-01/D-12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.90 OF 2020
IN
Exhibit-05
CNR No. MHCC01-012933-2019
Sanjesh Chunilal Jain
Age: 50 years.
of Mumbai an adult Indian Inhabitant
having his address at Room No. 70, 2nd Floor,
Swadheshi Market, Kalbadevi Road, Mumbai-
400 002. ... Plaintiff
V/s.
Dinesh Shankar Dodiya
Age not known of Mumbai, an adult Indian
Inhabitant, working for gain with western
Railway Control Section Ground Floor,
Old Building Head Quarters, Churchgate,
Mumbai- 400 020. And residing at :
1st Floor, 165/13, Railway Colony, Near Gaiety,
Galaxy S.V.Road, (West), Mumbai- 400 050. ... Defendant
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Summ. Suit No.90/2020
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SUIT FOR RECOVERY OF MONEY
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 21/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908 instituted by the plaintiff against the defendant.
2. The facts of the suit claim of the plaintiff are summarized
in nutshell as under :-
Plaintiff is doing business of money lending. The
defendant approached to him for loan. Hence, on 12.7.2018, the
defendant executed a Demand Promissory Note in favour of the plaintiff
for valuable consideration being a sum of Rs.2,50,000/- received by the
defendant from the plaintiff against and on the basis of execution and
handing over of the said Demand Promissory Note. By the said demand
promissory Note the defendant promised to pay to the plaintiff said sum
of Rs.2,50,000/- alongwith interest thereon @18% p.a. on demand.
The defendant thereafter failed and neglected to repay the amount as
per the stipulation and promise given in the demand promissory note.
Hence, after waiting for sufficient time, the plaintiff issued advocate’s
letter dtd.8.2.2019 calling upon the defendant to make the repayment
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of the outstanding amount. The due and payable amount against the
defendant alongwith 18% interest is Rs.2,87,383.55ps/-. Said amount is
not paid by the defendant. Hence, plaintiff is constrained to file the suit
for recovery of the said amount.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendant as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.2,87,383.55ps/--
with interest
@ 18 % per annum on
principal amount of
Rs.2,50,000/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.04 i.e the list of documents:
Sr.
No.
Description of documents Exhibits
1 Promissory Note dated 12.7.2018
being Exhibit “A” to the plaint.
Exh. 4/1
2 Plaintiff’s advocates’ letter dated
8.2.2019 being Exhibit “B” to the
plaint alongwith the postal records
in connection with the
transmission and delivery thereof.
Exh.4/2
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Sr.
No.
Description of documents Exhibits
3 Money Lending Licence Exh.4/3
4 Forms under Bombay Money
Lending Act.
Exh.4/4
5 Books of Accounts. Exh.4/5
AS TO POINT NO.1 :-
6. It is pertinent to note that the present suit is proceeded under
order XXXVII of C.P.C as the same is not contested by the defendant. The
plaintiff has to establish the entitlement for the monetary relief,
undoubtedly, as per the procedure laid down in order XXXVII C.P.C,
once the suit is not contested by the defendant, the plaintiff is entitled
for the relief claimed in the suit plaint. Here, the plaintiff has produced
above referred documents including his money lending licence, which
made him entitle to lend money.
7. All the documents produced by the plaintiff at Sr.No.1 to 5 goes
to establish that plaintiff has given amount of Rs.2,50,000/-to the
defendant. The documents further prove that the amount of
Rs.2,87,383.55ps/- is due and payable to the plaintiff from defendant
towards the amount. The defendant have failed to repay the said
amount to the plaintiff. The documents at Sr.No.1 to 5 goes to establish
that the defendant is liable to pay Rs.2,87,383.55ps/- to the plaintiff on
the date of filing of the suit towards the said amount. He failed to
comply with the demand letter. In this background, it is held that
plaintiff is entitled to recover sum of Rs.2,87,383.55ps/- from the
defendant.
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8. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 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 commercial one and there is contract
existing between the parties as to the rate of interest which shall be
levied. The agreed rate of interest is 18% p.a hence, I hold that, the
transaction being commercial one and the agreed rate of interest is @
18% per annum, said rate of interest of 18% p.a would be just and
proper to be awarded on the principal sum adjudged i.e. amount of
Rs.2,50,000/-. Hence, point No.1 is answer in the affirmative.
AS TO POINT NO.2 :
9. In view of discussion and finding on point No.1, it is held
that plaintiff is entitled to recover Rs.2,87,383.55ps/- from the
defendant with interest on principal amount of Rs.2,50,000/- at the rate
of 18% per annum from the date of filing of the suit till its realization.
Plaintiff is also entitled to recover cost of the suit from defendants.
Hence, in answer to point No.2, I proceed to pass the following order.
O R D E R
1. The defendant shall pay Rs.2,87,383.55ps/-(Rs. Two
Lakhs Eighty Seven Thousand Three Hundred Eighty
Three and Fifty Five Paise Only) to the plaintiff with
interest on principal amount of Rs.2,50,000/- at the rate
of 18% per annum from the date of filing of the suit till
its realization.
2. Defendant do pay costs of the suit to the plaintiff.
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3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :21/01/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :21.1.2022
Typed on :21.1.2022
Signed on :21.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/01/2022 3.00 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
21/01/2022
JUDGMENT/ORDER signed by
P.O.on
21/01/2022
JUDGMENT/ORDER uploaded on 21/01/2022
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