M/S.Devang Enterprises Vs Malbar Oil Marketing Co.

MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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 SUMMARY SUIT NO. 980 OF 1996

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 M/s. DEVANG ENTERPRISES .. PLAINTIFFS

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Vs.

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 MALBAR OIL MARKETING CO. .. DEFENDANTS

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 Mr. Kaushik Kothari for plaintiff

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 Ms. Meenal Dighe i/b Vinod Mistry & Co. for
 defendants

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CORAM:SMT. RANJANA DESAI, J.

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DATE: AUGUST 17, 2007.

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P.C.

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 . This suit is on my board under the caption
 "Undefended Suits for ex parte decree". The
 learned counsel for the plaintiffs has tendered in
 the court affidavit of evidence dated 17/8/2007 in
 lieu of examination-in-chief of the plaintiffs.

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 The affidavit is sworn by Shri Chandrakant Thakkar,
 proprietor of the plaintiffs, who is present in the
 court today. The said affidavit is marked "X".
 Compilation of documents on which the plaintiffs
 have placed reliance along with a list thereof is
 also tendered in the court. It is taken on record
 and marked "Y (Colly.)".

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 2. Suit is filed under Order XXXVII Rule 2 of the

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 Code of Civil Procedure. The case of the
 plaintiffs as per the averments in the plaint and
 the affidavit of evidence appears to be that the
 plaintiffs had advanced friendly loan of
 Rs.1,50,000/- to the defendants which the
 defendants agreed to pay to the plaintiffs together
 with interest thereon @ Rs.1.50% per month i.e.
 18% per annum. The defendants had executed a
 writing dated 17/9/91 whereby the defendants
 promised to pay principal amount of Rs.1,50,000/-
 to the plaintiffs on demand with interest as
 aforesaid. The original of the said writing dated
 17/9/91 being the demand promissory note dated
 17/9/91 is produced in the court. It is marked

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 Exh.-"A".

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 4. According to the plaintiffs, the defendants
 paid to the plaintiffs interest on the aforesaid
 principal amount of Rs.1,50,000/- at the agreed
 rate of 18% per annum for the period upto 31/12/91.
 The defendants failed and neglected to pay any

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 further amount by way of interest to the
 plaintiffs. The plaintiffs thereupon demanded
 repayment of the principal amount of Rs.1,50,000/-

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 from the defendants together with due interest
 thereon. However, the defendants failed and
 neglected to pay any amount to the plaintiffs
 despite the plaintiffs’ repeated oral requests and
 demands. The plaintiffs by their advocate’s notice
 of demand dated 15/7/94 called upon the defendants
 to pay the entire dues of the plaintiffs. The said
 demand notice was sent to the defendants by
 registered post A.D. It was received by the
 defendants on 28/7/94. The office copy of the
 plaintiffs’ advocate’s notice of demand dated
 15/7/94 along with the A.D. card is produced in
 the court. They are marked Exh. "B" (Colly.).

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 5. In reply to the plaintiffs’ advocate’s notice
 of demand dated 15/7/94, the defendants by their
 letter dated 14/10/94 addressed to the defendants
 admitted and acknowledged their liability to pay
 the dues of the plaintiffs as demanded, but the
 defendants pleaded their inability to immediately
 pay any amount to the plaintiffs on account of
 their financial constraints. However, by their
 said letter in reply the defendants agreed and
 promised to pay and clear the entire dues of the
 plaintiffs by the end of December, 1995. The
 original of the said letter dated 14/10/94 is also

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 produced in the court by the plaintiffs. It is

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 marked Exh. "C".

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 6. It is the case of the plaintiffs that

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 notwithstanding their aforesaid promise to pay as
 contained in their letter dated 14/10/94 addressed
 to the plaintiffs, the defendants failed and
 neglected to pay any amount whatsoever to the
 plaintiffs. The defendants have thus failed and
 neglected to pay and clear the plaintiffs’ dues.

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 7. The case of the plaintiffs, therefore, is that
 there is due and payable by the defendants to the
 plaintiffs, the principal amount of Rs.1,50,000/-
 as also an amount of Rs.1,08,000/- being the agreed
 interest payable thereon by the defendants to the
 plaintiffs @ 18% per annum. The particulars of the
 said claim are set out in Exhibit "D" to the
 plaint.

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 8. It is in these circumstances that the

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 plaintiffs have filed this suit against the

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 defendants for recovery of the said amount together
 with interest on the principal amount of
 Rs.1,50,000/- at the agreed rate of 18% per annum
 from 1/1/96 till the date of payment.

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 9. In this suit by order dated 12/8/97 this court
 had granted conditional leave to the defendants to
 defend the suit and directed the defendants to
 deposit a sum of Rs.2,00,000/- in the court within
 six weeks from the date of order and further
 directed the defendants to file written statement
 within six weeks. The defendants have deposited
 the said amount, however, they have failed to file
 their written statement and, therefore, this court
 directed the suit to be placed under the caption
 "Undefended Suits for ex parte decree".

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 10. The claim of the plaintiffs contained in the
 plaint has been duly proved by the affidavit of
 Shri Chandrakant Thakkar. Similarly all the
 documents on which reliance is placed have been
 tendered in the court and proved by the deponent of
 the said affidavit. The learned counsel for the
 defendants states that she has no instructions from
 the defendants.

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 11. In the circumstances since there is no contest
 by the defendants, in my opinion the plaintiffs are
 entitled to a decree in terms of prayer (a) of the
 plaint with modification as regards rate of

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 interest from the date of suit till payment.

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 12. I am informed that the amount which is
 deposited by the defendants in this court has been
 invested by the Prothonotary & Senior Master in a
 nationalized bank. Needless to say that the said
 amount along with the accrued interest thereon will
 be adjusted towards the amount which the plaintiffs
 are entitled to get from the defendants under this
 decree.

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 13. In the circumstances, the suit is decreed in
 terms of prayer clause (a) of the plaint with a
 modification as regards rate of interest i.e. the
 plaintiffs will be entitled to further interest on
 the principal sum of Rs.1,50,000/- at the rate of
 18% per annum from the date of filing of the suit
 till the date of decree and further interest at the
 rate of 8% per annum from the date of decree till
 the date of payment.

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 14. The plaintiffs will be entitled to refund of
 court fees, if any asper rules.

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 15. Suit is disposed of.

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 JUDGE.

M/S.Devang Enterprises v. Malbar Oil Marketing Co.

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M/S.Devang Enterprises v. Malbar Oil Marketing Co.

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