Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010131632019
Presented on : 16122019
Registered on : 04022020
Decided on : 18022021
Duration : Y01 M02 D02
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 69 OF 2020
Nayan Laherchand Mepani ]
Age: 46 years: Occ: Business ]
Adult, Indian Inhabitant residing at, 401, ]
Shivam CoOperative Housing Society Ltd. ]
Walji Ladha Road, Near Kalidas, Mulund ]
(West), Mumbai 400080 ]....Plaintiff
V/s
Gold Berg Inc. ]
Having office at G2, G3, Gaslaxmi ]
Apartment, Off. Ram Mandir Road, ]
Opp. Dream Building, Babhai Naka, ]
Borivali (W), Mumbai 400 092 ]....Defendant
AND
63/71, Om Chambers Opp. Veer Savarkar Garden, ]
56th off L.T. Road, TPS Road, ]
Borivali (W), Mumbai 400 092 ]
APPEARANCE:
Ld. Adv. Preeti Gada for plaintiff.
None for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 18th February, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks recovery of amount of Rs.
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17,30,475/ (Rupees Seventeen Lakhs Thirty Thousand Four Hundred
and Seventy Five Only) being principal amount of Rs. 15,00,000/
(Rupees Fifteen Lakhs Only) and further sum of Rs. 2,30,475/ (Rupees
Two Lakhs Thirty Thousand Four Hundred and Seventy Five Only)
towards the interest at the rate of 1.05 % pm accrued thereon from
01.04.2018 till the date of filing of suit and further interest at the rate
of 1.05% p.m. on Rs. 17,30,475/ from the date of filing of suit till the
date of payment or realization.
2. The facts giving rise to the suit in short can be stated as
follows:
It is the case of the plaintiff that defendant through broker
Shri R.H. Associates approached the plaintiff for financial help and
prayed for friendly loan. The plaintiff had advanced a friendly loan to
the defendant for a sum of Rs. 15,00,000/ on 24.05.2017 by RTGS
CITI Bank, Fort Branch. The defendant had executed promissory note
on 24.05.2017 payable on demand in favour of the plaintiff. The bill of
exchange i.e. promissory note is signed and stamped by the defendant.
The defendant had time to time had paid interest at the rate of 1.05 %
p.m. by cheque and had also deducted TDS on same amount. The
cheques dated 28.09.2017 and other cheques issued by the defendant
on presentation were dishonored. The defendant had failed to pay the
interest on the principal amount to the plaintiff. The plaintiff had
issued demand notice on 31.05.2019 and called upon the defendant to
make the payment of the amount advanced. The notice was not
accepted by the defendant. The notice is returned back to the plaintiff
with remark “Unclaimed” .
The plaintiff, therefore had prayed for recovery of amount
of Rs. 17,30,475/ being principal amount of Rs. 15,00,000/ and
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further sum of Rs. 2,30,475/ towards the interest at the rate of 1.05 %
pm accrued thereon from 01.04.2018 till the date of filing of suit and
further interest at the rate of 1.05% p.m. from the date of filing of suit
till the date of payment or realization.
3. Vide Order dated 04.03.2020, the suit is proceeded exparte
against defendant.
4. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of Rs. 17,30,475/ being
principal amount of Rs. 15,00,000/ and
further sum of Rs. 2,30,475/ towards
the interest at the rate of 1.05 % pm
accrued thereon from 01.04.2018 till the
date of filing of suit and further interest
at the rate of 1.05% p.m. from the date
of filing of suit till the date of payment
or realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
5. Heard learned Advocate Preeti Gada for plaintiff.
6. The plaintiff in support of its case had examined Nayan
Laherchand Mepani at Exh. 06. The plaintiff had relied upon following
documents (Exh.06):
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Sr.
No.
Particulars Exh.
1 Bank Certificate dated 04.12.2020 issued by the
plaintiff's Banker.
8
2 Original Bill of exchange cum demand promissory note
dated 24.05.2017
9
3 Bank Certificate dated 15.12.2020 issued by the
plaintiff's Banker.
10
4 Demand Notice dated 31.05.2019 along with postal
receipt issued by the plaintiff's advocate to the
defendant.
11
5 Returned packet 12
7. The evidence of plaintiff vide Exh. 6, points out that by
RTGS, Citi Bank, Fort Branch, the amount of Rs. 15,00,000/ were
transferred by the plaintiff to the defendant. The plaintiff had produced
Bank Certificate Exh.08 dated 04.12.2020 issued by the plaintiff's bank,
pointing out that the amount of Rs. 15,00,000/ were transferred to the
account of the defendant. The plaintiff further had produced bill of
exchange cum demand promissory note Exh.09 which is signed by
signatory of defendant. It shows that 1.05 % interest per month interest
would be charged. It is the evidence of the plaintiff that cheques issued
by the plaintiff for repayment of the amount were not honored. The
following cheques were issued by the defendant:
Cheque No. 485 on 28.09.2017 paid sum of Rs. 68,250/ as
interest @ 1.05 % p.m. for period 24.05.2017 to 30.09.2017 and
further on 14.05.2018 paid by Cheque No. 404 sum of Rs. 95,550/ as
interest @ 1.05 % p.m for period 01.10.2017 to 31.03.2018. On
31.07.2018, paid by Cheque No. 524 for sum of Rs. 95,550/ as interest
@ 1.05 % p.m. for period 01.04.2018 to 30.09.2018.
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8. It is the case of the plaintiff that defendant had failed to
repay the amount. Therefore, plaintiff had issued notice (Exh.11) dated
31.05.2019. The notice was not replied by the defendant. The plaintiff
had produced seal packet (Exh.12) with endorsement Unclaimed
Return to Sender.
9. The contentions raised by the plaintiff in the plaint and
evidence have gone unchallenged. The defendant had refrained from
appearing in the suit and had contested the suit. The cheques issued by
the defendant were also dishonored. The plaintiff had proved demand
promissory note signed by the defendant. The plaintiff also had proved
that amount of Rs. 15,00,000/ were transferred in the account of the
defendant. The contentions of the plaintiff have gone unchallenged.
The conduct of the defendant for not contesting the suit shows that it
had acknowledged his liability towards plaintiff.
The plaintiff is entitled for recovery of a sum of
Rs.17,30,475/ i.e. Rs.15,00,000/, being the principal loan amount and
further sum of Rs. 2,30,475/ towards the interest at the rate of 1.05%
p.m. accrued thereon from 01.04.2018 till the date of filing of the suit
and further interest at the rate of 1.05 % per annum on the principal
amount of Rs. 15,00,000/ from the date of filing of suit till its
realization. Hence, I answered point No. 1 is “in Affirmative.”
In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The Defendant is directed to pay to the plaintiff a aggregate sum of
Rs.17,30,475/ (Rupees Seventeen Lakhs Thirty Thousand Four
Hundred and Seventy Five Only) i.e. Rs.15,00,000/ (Rupees Fifteen
Lakhs Only), being the principal loan amount and further sum of Rs.
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2,30,475/ (Rupees Two Lakhs Thirty Thousand Four Hundred and
Seventy Five Only) towards the interest at the rate of 1.05% p.m.
accrued thereon from 01.04.2018 till the date of filing of the suit
and further interest at the rate of 1.05 % per annum on the principal
amount of Rs. 15,00,000/ from the date of filing of suit till its
realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 18.02.2021 Gr.Bombay at Mumbai.
Dictated on : 18.02.2021
Transcribed on : 24.02.2021
Signed by H.H.J.on : 25.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.03.2021 at 2.30 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
18.02.2021
Judgment/order signed by P.O. on 25.02.2021
Judgment/order uploaded on 01.03.2021
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