Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.982/2021
MHCC010129522019 Presented on : 09/12/2019
Registered on : 10/01/2020
Decided on : 02/09/2023
Duration : 03Y 08M 25D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.09
SUMMARY CIVIL SUIT NO.982 OF 2021
Mr. Santosh Nagurao Gadge,
of Mumbai, an adult Indian Inhabitant,
Occupation: Business at Room No.4, N. M. Gadge
Chawl, Makadwala Compound, Jai Shankar Chowk,
Halavpool Road, Kurla (W), Mumbai – 400 070.
]
]
]
]
] ..Plaintiff
V/s.
Mr. Vijyanand Sahadeo Jadhav,
of Kurla West, Mumbai, an adult Indian inhabitant,
Occupation: Service, having his office address at
3rd Maharashtra BTN. N.C.C. Mumbai Old Secretariat
Compound, N.C.C. Building, Designation: Lascars,
Mumbai – 400 032, and also having his residence
address at Building No.6, Room No.902, Government
Colony, Near Kherwadi Police Chowki, Bandra East,
Mumbai – 400 032.
]
]
]
]
]
]
]
]
] ..Defendant
Appearance :-
Mr. Balbheem Patil, learned advocate for plaintiff.
None for defendant (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 02/09/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.3,00,000/- under the demand promissory note. The plaintiff has
-- 1 of 5 --
..2.. Summary Civil Suit
No.982/2021
come with the case that he has advanced friendly loan of Rs.3,00,000/-
to the defendant, who executed promissory note on 22/10/2017. The
defendant had agreed to pay the amount of Rs.3,00,000/- without
interest. However, defendant did not pay the loan amount, therefore,
the plaintiff is entitled for recovery of amount due. Now, plaintiff has
claimed interest on the amount, due to default made in payment.
2 The writ of summons was served upon defendant vide
Exhibit-02, the defendant accepted the summons, but failed to appear
before the Court. Hence, as per the order in
roznama dated
05/03/2020, suit proceeded ex-parte against defendant.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the
defendant has executed demand
promissory note of Rs.3,00,000/- ?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the plaintiff
entered the witness box and relied on two documents (Exhibit-06 and
07) under list (Exhibit-05). Heard learned advocate for plaintiff.
-- 2 of 5 --
..3.. Summary Civil Suit
No.982/2021
As to point Nos.1 to 3 :-
5 The plaintiff has tendered his Claim Affidavit (Exhibit-04)
alongwith documents as per list (Exhibit-05). On perusal of demand
promissory note, it reveals that it bears signature and thumb
impression of the defendant. In consequence of failure to pay the
amount under the demand promissory note, the plaintiff has issued a
notice on 08/05/2018. There is no reason to disbelieve the contentions
of plaintiff, which remains unchallenged. Therefore, suit deserves to be
decreed as per the provisions of Order XXXVII Rule 2(3) of the Code of
Civil Procedure. Thus, the plaintiff is entitled for recovery of amount
under the demand promissory note.
6 There is nothing on record to show that the defendant has
ever paid any amount under the demand promissory note. His absence
and omission to appear before the Court on being served with the writ
of summons shows that he has no substantial defence and has
admitted the claim of plaintiff. Therefore, it is established that the
defendant has executed the demand promissory note for
Rs.3,00,000/-.
7 So far as interest is concerned, the plaintiff is claiming
interest from the defendant. It is his contention that he has advanced
loan without interest, but due to default committed by defendant, he
suffered loss, hence, seeking interest. He did not specify the rate of
interest. No doubt the plaintiff has suffered loss in business and profit,
due to failure to repay the amount by the defendant. Had it been paid
to the plaintiff as per demand, he would have invested and would have
-- 3 of 5 --
..4.. Summary Civil Suit
No.982/2021
earned profit therefrom. Therefore, I am of the view that the plaintiff is
entitled for interest at the rate of 9% per annum from the date of filing
till its full realisation. In view of above discussions, I answer point No.1
in affirmative and point Nos.2 and 3 in partly affirmative.
8 As the defendant has made plaintiff constrained to file the
suit, he is also liable to pay the costs. In the result, I proceed to pass
the following order :-
ORDER
1. Summary Civil Suit No.982/2021, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.3,00,000/- alongwith interest at the rate of 9% per
annum, from the date of filing till its full realisation
from the defendant.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 02/09/2023 C.R. No.15
Dictated on : 02/09/2023
Typed on : 02/09/2023
Signed on : 02/09/2023
-- 4 of 5 --
..5.. Summary Civil Suit
No.982/2021
“Certified to be true and correct copy of the original signed order”.
04/09/2023
at about 05.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 02/09/2023
Order signed by Hon'ble Judge on : 02/09/2023
Order uploaded on : 04/09/2023
at about 05.45 p.m.
-- 5 of 5 --