Final Order 1

Order Details: Other
Pdf Text: MHCC010130072019 Presented on 11/12/2019
Registered on 11/12/2019
Decided on 08/11/2024
Duration 04Y: 10M: 28D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 290 OF 2019
IN
SUMMARY SUIT NO. 175 OF 2019
Mr. Mohamed Rasool Agha Mohamed (Aslam), ]
of Mumbai an adult Indian Inhabitnat, ]
aged 52 years, Occupation carrying on ]
Money lending Business, in the name ]
of Mr. Mohamed Rasool Agha Mohamed (Aslam) ]
under license No.RBC 1191 and having his ]
residence and office address at 56-Abdviabhbhai ]
Karimji Building, 06th Floor, Janambhumi Marg, ]
Fort Mumbai-400 001. ]
(Mobile No.9869381229) ]...Plaintiff
V/s. ]
Mr. Jai Pratap Maniar ]
of Kemps Corner, Mumbai an adult Indian ]
Inhabitant, Aged about 44 years, Occupation ]
Service, residing at 18-06th Floor, Vitthal ]
Court Apartment, Kemps Corner, A. K. Marg, ]
Mumbai-400 036. ]
And also having his office address at ]
Patel House, 1st floor, Cawasji Patel Road, ]
Fort Mumbai-400001. ]...Defendant
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Appearance :
Ld. Advocate Mr. B. S. Patil for the plaintiff.
Defendant absent. (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 08/11/2024
ORDER
01] Plaintiff has filed summons for Judgment No. 290/2019
against defendant. Summons for judgment is served on defendant on
16/12/2019 by RPAD. As counsel for defendant had filed discharge
application, notice was issued to defendant on Court motion by RPAD.
The said notice is served on defendant on 04/10/2022. However,
defendant failed to appear therefore, order was passed to proceed
summons for judgment without reply of defendant vide order dated
06/12/2019.
02] As per the plaintiff, he do the business of money lending at
the address mentioned in cause title. The defendant is also working at
address mentioned in cause title. The plaintiff lent an amount of
Rs.1,00,000/- to the defendant on 28/05/2018. Defendant has executed
a Promissory Note dated 28/05/2018 and agreed to repay said loan
with interest at the rate of 18% p.a. Further, inspite of demands and
reminders, the defendant failed to pay the said amount. Therefore, the
plaintiff issued the demand notice dated 13/11/2018 through his
advocate and called upon him to pay amount of Rs. 1,10,500/-.
However, the defendant failed and neglected to pay said amount.
Plaintiff has calculated interest from the date of promissory note i.e.
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28/05/2018 till 28/12/2018. As defendant has not raised any
substantial defence or raised triable issues, as he has not filed reply to
summons for judgment. Thus, defendant has admitted contentions of
plaintiff as it has remained unchallenged. Therefore, the plaintiff prayed
for the decree for an amount of Rs. 1,10,500/- with the further interest
@ 18% p.a. on the principal amount of Rs.1,00,000/- from the date of
filing the suit till its full realization.
03] The plaintiff has filed and relied upon the following
documents vide Exh. 8.
Sr.
No. Exhibit No. Particulars
1 Exh. 8/1 Original Demand Promissory Note dated
28/05/2018.
2 Exh. 8/2
colly.
Copy of demand notice dated 13/11/2018 along
with original postal receipt.
3 Exh.8/3 Photocopy of Money Lending License.
04] Perused summons for judgment and record. As per the
plaintiff, he is money lender and carrying on business as money lenders.
However, plaintiff has not filed copy of his Money Lending License to
substantiate his contention. He has filed only photocopy of said license
vide Exh. 8/3. Therefore, said document cannot be read in evidence.
Further, as per Section 13 of Maharashtra Money Lending (Regulation)
Act, 2014, a Court cannot pass decree in favour of money lender in a
suit unless the Court is satisfied that the money lender has a valid
license when loan was made.
05] Further, plaintiff to prove that he had lent an amount of
Rs. 1,00,000/- to the defendant on 28/05/2018 has executed a
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Promissory Note dated 28/05/2018, he has filed promissory note at
Exh. 8/1. Further, it appears from said document that defendant had
agreed to repay said amount with interest at the rate of 18% p.a. On
perusing promissory note, it appears that it bears thumb impression and
signature of defendant. Thus, it appears that defendant has borrowed
loan of Rs. 1,00,000/- and agreed to repay as contended by the plaintiff.
Defendant has failed to appear and contest the matter. Therefore,
evidence of plaintiff has remained unchallenged.
06] Plaintiff has contended that defendant dishonoured
demand promissory note. Therefore, he issued demand notice dated
13/11/2018 at Exh. 8/2 colly. to defendant and called upon him to pay
principal amount with interest at the rate of 18% p.a. Plaintiff has filed
original postal receipt and returned sealed envelope on record. It
appears that notice is not received by the defendant. It is pertinent to
note that notice sent to defendant is returned unserved with remark
'unclaimed'. Thus, it appears that defendant has avoided service of
summons. Therefore, promissory note at Exh.8/1 is dishonoured.
Further, plaintiff has contended that defendant failed to repay principal
amount as well as interest thereon. Thus, I am of the view that plaintiff
has proved that he had advanced an amount of Rs. 1,00,000/- to the
defendant and he had executed promissory note at Exh. 8/1 to repay
said loan with interest at the rate of 18% p.a. Further, plaintiff has also
filed photocopy copy of extract Money Lending License. Even, as
discussed above, plaintiff has not filed a valid Money Lender's License
on record to show that he was having valid license when he had
advanced money to defendant. Therefore, plaintiff is not entitled for
judgment and decree, as per Order 37, Rule 6(b) of C.P.C., as summons
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for judgment is not maintainable for want of original document. Hence,
I proceed to pass following order.
O R D E R
1) Summons for judgment No.290/2019 in Summary Suit
No. 175/2019 is dimsissed.
2) Summary Suit No. 175 of 2019 is hereby dismissed.
3) No order as to costs.
4) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Date: 08/11/2024 Court Room No.81.
Dictated on: 08/11/2024
Corrected & signed on: 12/11/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
12/11/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 08/11/2024
JUDGMENT/ORDER signed by P. O. on 12/11/2024
JUDGMENT/ORDER uploaded on 12/11/2024
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