Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010132912019 Presented on 18-12-2019
Registered on 15-02-2020
Decided on 25-10-2023
Duration 03Y: 10M: 07D
Exhibit 10
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 662 OF 2023
Sureshkumar Jaychandji Jain ]
Age: 67, of Mumbai an adult Indian ]
Inhabitant, having his address at ]
30/32, Ramwadi 3rd Floor, ]
Mumbai - 400 002. ]...Plaintiff
V/s.
1. Khimji Lakhamshi Shah ]
Age not known of Mumbai an adult ]
Indian, inhabitant, having its address ]
at C/o. M/S. Eurowood Lumber Pvt. ]
Ltd Flim City Road, Goluldham, ]
Opp. Sudha Hospital, Malad East, ]
Mumbai - 400 097. ]
2:M/s. Eurowood Lumber Pvt. Ltd. ]
A company registered under the ]
Companies Act having its address ]
Film City Road, Gokuldham ]
Opp. Sudha Hospital, Malad East ]
Mumbai - 400 097. ]...Defendants
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2 Sum Suit No.662/2023
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
Defendants absent -(Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 25/10/2023.
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908(CPC) for recovery of amount of
Rs.7,20,438.35. Brief facts of the plaintiff’s case may be summarized
as under:
2. The plaintiff contends that for valuable consideration of
Rs.5 lakhs received from the plaintiff, defendant No.1 drew a Bill of
Exchange on 01-04-2014, directing defendant No.2 to pay to the
plaintiff the sum of Rs.5 lakhs on demand. Said Bill of Exchange was
accepted by the defendant on the same day.
3. The plaintiff further contends that on 02-05-2014 when
he presented the Bill of Exchange and demanded the amount from
defendant No.2, it was dishonored by the non-payment. Therefore, the
plaintiff informed the same to defendant No.1 and demanded the
amount to defendant No.1. Thereafter, the defendants pleaded
financial difficulties and requested the plaintiff to wait for some time
and assured that the defendant will pay the amount together with the
interest. On repeated and frantic demands for payment under the Bill
of Exchange by the plaintiff, the defendant issued a cheque dated
15th November, 2016 for Rs.5 lakhs bearing No.568717 in favour of the
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plaintiff drawn on Union Bank of India, Malad (East), Mumbai.
4. According to the plaintiff, when he presented the said
cheque to his Banker, it is dishonoured on 16th November, 2016 with
the remark “Funds Insufficient”. However, the defendants failed and
neglected to pay the amount. Therefore, the plaintiff issued a demand
notice dated 03-03-2017 through his advocate and called upon the
defendants to pay the amount Rs.5 lakhs with accrued interest. Inspite
the receipt of notice, the defendants failed to pay the amount.
According to the plaintiff, the defendants are liable to pay the amount
Rs.7,20,438.35 and further interest @ Rs.18% on the principal sum of
Rs.5 lakhs from the date of filing the suit till its full realization.
Hence, the present suit.
5. The defendants were served with the writ of summons.
The plaintiff has filed affidavit of service at Exh.2 & 6. However, they
failed to cause appearance and hence the suit proceeded ex-parte
against them by the order dated 18-08-2022.
6. In support of claim, the plaintiff filed his affidavit of claim
at Exh.7 and reiterated his contention of recovery of Rs.7,20,438.35
along with further interest at the rate of Rs.18% p.a. The plaintiff has
filed and relied upon following documents.
Sr. No. Particulars
1 Bill of Exchange dated 01-04-2014
2 A cheque dated 15th November, 2016 and memo of
dishonoured.
3 Plaintiff's advocate's letter dated 03-03-2017 along with
postal records.
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7. To decide the present suit, following points arose for my
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.7,20,438.35
from defendants?
If yes, at what rate interest?
Partly yes.
Entitled to Rs.5 lakhs with
interest @ Rs. 6% p.a. from
date of filing the suit till its
full realization.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 & 2-
8. The plaintiff has filed his claim affidavit in support of his
contention of receipt of Bill of Exchange for consideration of Rs.5
lakhs. His oral testimony is supported by the original Bill of Exchange
dated 01-04-2014. The plaintiff enjoys presumption under section
118(a) of Negotiable Instruments Act, 1881, which supports the
contention of the plaintiff that the present Bill of Exchange was issued
for the valuable consideration of Rs.5 lakhs.
9. As noted above, the plaintiff has filed on record demand
Bill of Exchange dated 01-04-2014 which reveals that the defendant
No.1 executed the Bill of Exchange for valuable consideration of Rs.5
lakhs. The said Bill of Exchange bears signatures of defendant No.1 as
a drawer and defendant No.2 as acceptor. The plaintiff on oath has
deposed that the said Bill of Exchange came to be dishonoured by
non-payment at the hands of the defendants. This document shows
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that the said amount was payable on demand.
10. It appears that the plaintiff had demanded the amount of
Bill of Exchange to the defendants by way of notice dated
03-03-2017 and also placed document i.e. the cheque dated
15-11-2016 and memo of dishonoured, which supports the plaintiff.
As the suit proceed ex-parte against the defendants, no contra
evidence has come on record. Therefore, the fact of execution of Bill of
Exchange for valuable consideration, can not be disputed. Hence, I
hold that the plaintiff is entitled to recover the principal amount of
Rs.5 lakhs from the defendants and they are jointly and severally liable
to pay it to the plaintiff.
11. It may be seen that the plaintiff has applied the interest
Rs.2,20,438.35 at the rate of Rs.18% p.a. on the principal amount of
Rs.5 lakhs from 16-11-2016 till filing the suit. But, it is important to
note that the transaction between the plaintiff and defendant No.1 is
appearing purely a hand loan transaction without any interest.
Therefore, the plaintiff cannot be held entitled to any interest on Rs.5
lakhs till filing the suit. The plaintiff has claimed further interest at the
rate of Rs.18% p.a. on the principal amount, but this rate of interest is
appearing excessive. Therefore, I am of the view that granting the
interest at the rate of Rs.6% p.a. on the principal amount of Rs.5 lakhs
from the date of the suit till its full realization would be just and
proper. Hence, I hold that the plaintiff is entitled to interest at the rate
of of Rs.6% p.a. on the principal cheque amount Rs. 5 lakhs. Hence, I
answer point No.1 accordingly. In the result, in an answer to point
No.2, I proceed to pass the following order.
O R D E R
1) Summary Suit No.662/2023 is hereby partly decreed with
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costs.
2) The defendants shall pay an amount of Rs.5 lakhs to the
plaintiff along with interest thereon at the rate of Rs. 6% p.a.
from the date of filing the suit till its full realization.
3) The defendants are jointly and severally liable to pay the
decreetal amount.
4) The plaintiff is entitled to get refund 2/3rd of court-fees paid by
him.
5) Decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date: 25-10-2023 Court Room No.61
Mumbai.
Dictated directly on: 25-10-2023
Corrected & signed on : 26-10-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26-10-2023 at 12.45 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.) C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
25-10-2023
JUDGMENT/ORDER signed by P. O. on 26-10-2023
JUDGMENT/ORDER uploaded on 26-10-2023
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