Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.202/2021
MHCC010133022019 Presented on : 18/12/2019
Registered on : 17/02/2021
Decided on : 10/01/2024
Duration : 04Y 00M 24D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY CIVIL SUIT NO.202 OF 2021
M/S. OTARMAL KANTILAL & CO.
a Registered Partnership Firm carrying on business
at Shop No.8, Kalyan Building No.2, Sadashiv Cross
Lane, Kandewadi, Bombay – 400 004 through its
Partner Mr. Parasmal Otarmal Jain.
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] ..PLAINTIFF
VERSUS
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2.
RAVIKANT GOVIND LOKHANDE
an adult Indian Inhabitant, working for gain
with Canara Bank, Kurla West Branch, Kanakia
Zillion Building, near Old BEST Depot, L. B. S.
Marg, Kurla, Mumbai-400 070 and residing at
Om Abhishek Apartment, Room No.2, Ground
Floor, Vitawa, Thane – 400 604.
DINKAR ANTU RAVIDHONE,
an adult Indian Inhabitant, working for gain with
Indian Government Mint, T. No.2418, Coining
Department, S. B. Road, Fort, Mumbai – 400 023
and residing at 4/212, Mint Staff Quarters,
Saibaba Path, Parel, Mumbai – 400 012.
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..Defendant
(Deleted as per
roznama dated
13/12/2021)
Appearance :-
Mr. Udit Raghuvanshi, learned advocate for plaintiff.
None for defendants (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 10/01/2024.
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..2.. Summary Civil Suit
No.202/2021
J U D G M E N T
1 This summary suit is filed for recovery of amount of
Rs.3,86,113/-. The plaintiff has come with the case that it paid
Rs.3,00,000/- to the defendant No.1 who drew bill of exchange on
21/12/2016, directing the defendant No.2 to pay to the plaintiff, a
sum of Rs.3,00,000/- on demand. The bill of exchange was accepted
and delivered by defendant No.2 to the plaintiff on the same day. The
plaintiff presented the bill of exchange on 20/01/2017, to the
defendant No.2 and demanded to pay the amount of bill of exchange,
but he did not pay. The plaintiff immediately informed defendant No.1
about the dishonour, who neglected to pay. It is further contended by
plaintiff that defendant No.1 after persuasion made part payment of
Rs.50,000/- and failed to pay the remaining balance amount of
Rs.2,50,000/-. Thereafter, on 02/12/2019, plaintiff issued notice to the
defendants through his advocate to pay the balance due amount, but
they avoided to pay. It is his contention that the defendants are jointly
and severally liable to pay the amount of Rs.2,50,000/- alongwith
interest at the rate of 18% per annum, hence, this suit.
2 In response to the writ of summons upon the defendant
No.1, the summons is duly served, but he failed to appear before the
Court. The plaintiff had also tendered application (Exhibit-06) for
deleting the name of defendant No.2 in the cause title. Therefore, suit
proceeded ex-parte against defendant No.1. and name of defendant
No.2 is deleted in the cause title as per order in roznama dated
13/12/2021.
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No.202/2021
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
defendants are in due of amount of
Rs.2,50,000/- ?
Affirmative
2 Does the plaintiff prove that it 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 authorised
person of plaintiff entered into the witness box and relied on various
documents under list (Exhibit-08). Heard learned advocate for
plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit-07) alongwith documents as per list (Exhibit-08). On
perusal of bill of exchange (Exhibit-09), it reveals that it bears
signature of the defendants. It is further brought on record that
defendant made part payment of Rs.50,000/-, but failed to pay the
balance due amount of Rs.2,50,000/-. In consequence of failure to pay
the balance due amount under the bill of exchange, the plaintiff had
issued a notice on 02/12/2019. Therefore, there is no reason to
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No.202/2021
disbelieve the contentions of plaintiff, which remains unchallenged.
Hence, suit deserves to be decreed as per the provisions of Order
XXXVII Rule 2(3) of the Code of Civil Procedure.
6 There is nothing on record to show that the defendants
have paid the outstanding balance amount. Their absence and
omission to appear before the Court on being served with the writ of
summons shows that they have no substantial defence and have
admitted the claim of plaintiff. Therefore, the plaintiff is entitled to
recover the balance due amount.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendants, however, I
am of the view that it is exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the balance due amount by the defendants. Had it been paid to the
plaintiff as per demand, it would have invested and would have earned
profit therefrom. On perusal of particulars of claim, it reveals that the
plaintiff has calculated the interest as per the banking business,
however, the plaintiff is not carrying banking business, so it is entitled
for the interest on the balance amount from the date of last payment
by the defendant. Therefore, I am of the view that the plaintiff is
entitled for interest at the rate of 9% per annum from 12/06/2018, 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 against
defendant No.1.
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8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. Summary Civil Suit No.202/2021, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.2,50,000/- alongwith interest at the rate of 9% per
annum, from the date of last payment i.e.
12/06/2018, till its full realisation, from defendant
No.1.
3. Decree be drawn up accordingly.
4. Court fees, if any, be refunded as per rule.
(Judgment dictated and pronounced in open Court)
( Shaikh Akbar Shaikh Jafar )
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 10/01/2024 C.R. No.84
Typed on : 10/01/2024
Signed on : 10/01/2024
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“Certified to be true and correct copy of the original signed order”.
11/01/2024
at about 5.30 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.84, Mazgaon, Mumbai
Date of pronouncement of Order : 10/01/2024
Order signed by Hon'ble Judge on : 10/01/2024
Order uploaded on : 11/01/2024
at about 5.30 p.m.
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