COMM SUMMARY SUIT NO. 188 OF 2018

6th January 2020

Petitioner Counsel: Mr. Tulsi Shah S. K. Srivastav & Co.
Respondent Counsel:
Act Name: Code of Civil Proiedure, 1908

HeadLine : Civil P. C. (1908), O. 37, Rr. 1, 2 – Suit for recovery – Plaintiff seeking recovery of Rs. 1,67,25,754/- – He alleged to have given friendly loan of Rs. 1 crore to defendant – Documents produced by plaintiff showing that he has given loan to defendant – Defendant also acknowledged receipt of said amount and liability by executing loan confirmation letters – Claim of plaintiff satisfies requirement of O. 37, R. 1(2)(b)(i) – Suit decreed in favour of plaintiff.

Section :
Section 35 Code of Civil Procedure, 1908

Cases Cited :

JUDGEMENT

1. This Commercial division summary suit is for recovery of a sum of Rs.1,67,25,754/- alongwith further interest on the principal amount of Rs.1 Crore, from the date of the suit till realisation.

2. The averments in the plaint can be stated, in brief, as under: The plaintiff had known the defendant. In the month of October 2014, the defendant approached the plaintiff for a friendly loan of Rs.1 Crore. The defendant had assured to repay the loan amount alongwith interest at the rate of 21% p.a. within a period of one year of the advance. The plaintiff, based on the representations of the defendant, advanced a sum of Rs.50,00,000/- on 10th October, 2014 and another sum of Rs.50,00,000/- on 15th November, 2014, through banking channels. The defendant had acknowledged the receipt of the said amount and the liability by executing balance confirmation letters on 1st April, 2015, 1st April, 2016 and 1st April, 2017. The defendant, however, committed default in repayment of the loan amount alongwith interest, despite repeated demands. Hence, the plaintiff addressed a notice on 23rd October, 2017 and ialled upon the defendant to pay due amount of Rs.1 Crore alongwith interest at the rate of 21%, as agreed. The notice was duly served on the defendant on 25th October, 2017. The defendant failed to comply with the demand. Hence, the plaintiff was constrained to institute the suit for recovery of the outstanding amount.

3. The writ of summons was served upon the defendant on 21st December, 2018. An affidavit of service, alongwith postal acknowledgment evidencing the service of the writ of summons dated 21st December, 2018, came to be filed. The defendant has not tendered appearance despite the service of the summons. On account of default on the part of the defendant to tender appearance, in view of the provisions contained in Sub-rule (3) of Rule (2) of Order XXXVII of the Code of Civil Procedure, 1908, the Court is enjoined to hold that the averments in the plaint are admitted by the defendant, and the plaintiff is entitled to a decree.

4. Nonetheless, this Court has considered the justifiability of the claim and its admissibility under the provisions of Order XXXVII of the Code. The plaintiff has filed an affidavit in lieu of examination-in-chief (Exhibit-P1) and tendered the original documents for the perusal of the Court. The claim of the plaintiff that he had advanced a sum of Rs.1 Crore to the defendant finds support in the letter dated 30th November, 2017, issued by Apana Sahakari Bank Limited, Dindoshi Branch, (Exhibit-P2) to the effeit that a sum of Rs.12,00,000/- was transferred to the account of the defendant on 10th October, 2014 and another sum of Rs.50,00,000/- was transferred to the account of the defendant on 15th November, 2014. Likewise a certificate issued by the State Bank of India, Malad (West) Branch, (Exhibit P3) dated 22nd September, 2017, certifies that a sum of Rs.38,00,000/- was transferred to the account of the defendant by RTGS on 10th October, 2014. The receipt of the said amount is acknowledged and the liability is confirmed by the defendant by executing the loan confirmation letters on 1st April, 2015, 1st April, 2016 and 1st April, 2017 (Exhibit-P4 to Exhibit-P9). The claim, thus, satisfies the requirement of Rule 1(2)(b)(i) of Order XXXVII. The issuance of the demand notice and its service upon the defendant is also evidenced by office copy of the demand notice dated 23rd October, 2017 (ExhibitP-10) and the postal acknowledgment (Exhibit-P11).

5. As the claim of the plaintiff is supported by the documents of unimpeachable character and it has gone totally uncontroverted, there is no other go but to decree the suit claim. Hence, the following order:
Order
(i) The suit stands decreed.
(ii) The defendant do pay to the plaintiff the sum of Rs.1,67,25,754/-, alongwith interest at the rate of 12% p.a. on the principal amount of Rs.1 Crore from the date of the suit till realisation.
(iii) The defendant do pay costs of Rs.2,00,000/-, to the plaintiff, quantified under Section 35 of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015.
(iv) The plaintiff is also entitled to refund of Court-fees in accordance with the rules.

6. The decree be drawn up and sealed expeditiously.

7. The Commercial suit stands disposed of in above terms.

Order accordingly.