1 S.2704.01Judg..sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2704 OF 2001 Mr. Manubhai M. Shah, Indian Inhabitant having his Office at 9, Abdul Rehman Street, 32, Yusuf Building, Mumbai – 400 003. ... Plaintiff. V/s. Mr. Mohammed Jaid Samro Momin (Since deceased) through his heirs 1. Solat Zaid Momin 2. Saif Zaid Momin. 3. Samra Zaid Momin. 4. Umais Zaid Momin. 5. Hamza Zaid Momin. All adults, Indian Inhabitants Residing at 638, Darga Road, Bhivandi, District – Thane. ... Defendants. Mr. Amrish Gajbhiye i/b. S. Ashwinkumar & Co. for the Plaintiff. None for the Defendants. CORAM : R.Y. GANOO, J. DATED : 30th NOVEMBER 2010. ORAL JUDGMENT :- The Plaintiff filed the Suit against one Mohd. Jaid Samro Momin on 30th July 2001 for a declaration that agreement at Exhibit ‘B’ to the plaint is valid, subsisting and binding upon 2 S.2704.01Judg..sxw the Defendant. He also prayed for decree in the sum of Rs. 13,13,349/- alongwith the interest at the rate of 2% per month from the date of the filing of the Suit till decree and thereafter, By prayer clause (c), he wants a declaration that valid, subsisting and binding charge is in favour of the Plaintiff in regard to the property described in prayer clause (c) of the plaint. By prayer clause (d), he has prayed for an order that if the decree is not satisfied, the property described in prayer clause (c) of the plaint be sold and sale proceeds be paid to the Plaintiff. By prayer clause (e) an order of injunction is sought restraining the Defendants from creating third party rights and/or parting with possession in regard to the property described in prayer clause (b). The Defendant did not file written statement. Hence, the Suit was treated as undefended Suit. During the pendency of the Suit the Defendant expired. His heirs were brought on record. They have not filed written statement. 2. In the absence of written statement, there was no need to frame the issues. However, following points will have to be decided :- 3 S.2704.01Judg..sxw (i) Whether the Plaintiff is entitled to recover from the Defendants Rs. 13,13,349/- alongwith the interest as prayed for on the basis of document at Exhibit ‘B’ to the plaint ? (ii) Whether a valid charge came to be created in favour of the Plaintiff in regard to property situate at Bhivandi, described in prayer clause (c) ? (iii) Whether orders in terms of prayer clause (d) for sale of the said property is required to be passed ? (iv) Whether an order of injunction is required to be passed against the Defendants ? 3. Few facts necessary for the disposal of this Suit are as under : The Plaintiff is a commission agent in yarn market and sells yarn to various companies. The original Defendant (for short the Defendant) had looms at Bhivandi and he had purchased certain quantity of the yarn in the market. The Defendant did not have funds to pay the said bills and that is why the Plaintiff offered to 4 S.2704.01Judg..sxw the Defendant Rs.11,36,641/- so that the Defendant can make the said payment. According to the Plaintiff, the Defendant executed a declaration in favour of the Plaintiff and agreed to repay Rs.11,36,644/-. According to the Plaintiff, the Defendant also agreed to pay Rs. 92,677/- being the late payment charges. All this was to be paid within 12 months from the date of such a declaration. According to the Plaintiff, the declaration came to be signed on 31st July 1998. It is the case of the Plaintiff that after the said declaration, the Defendant paid to the Plaintiff a sum of Rs.7,50,000/- leaving a balance of Rs.8,25,166/-. According to the Plaintiff, late payment charges were recoverable at the rate of 2% per month and that is how as of 27th July 2001, the Plaintiff claims that he was entitled to recover Rs.8,25,166/- alongwith late payment charges at the rate of 2% per month from 18th August 1999. It is the case of the Plaintiff that the Plaintiff, through his Advocate issued Notice dated 27th July 2001 calling upon the Defendant to pay to the Plaintiff Rs. 5 S.2704.01Judg..sxw 8,25,166/- and interest at the rate of 2% per month as mentioned above. As the Defendant did not comply with, the Plaintiff was required to file the Suit. According to the Plaintiff, on the date of the filing of the Suit, a sum of Rs.13,13,349/- is recoverable. It is also the case of the Plaintiff that interest at the rate of 2% per month is recoverable as late payment charges. 4. Looking to the facts of the case it became necessary for the Plaintiff to lead evidence in support of his case. Accordingly, the Plaintiff filed evidence affidavit dated 28th July 2009. He also tendered compilation of documents. No other witness was examined on behalf of the Plaintiff. Since the Defendants remained absent all along, there was no question of any witness being examined on behalf of the Defendants. 5. The Plaintiff has relied upon the original declaration dated 31st July 1998 on the basis of which the Plaintiff has instituted the present Suit. This document is marked as ‘X’ for identification. Advocates notice dated 26th July 2001 sent by the Plaintiff’s Advocate to the Defendant is at Exhibit P-1. 6 S.2704.01Judg..sxw 6. With the aforesaid record, the learned Counsel for the Plaintiff tried to submit that the case of the Plaintiff as regards the transaction has to be accepted. He had submitted that the Court should accept the declaration executed by the Defendant on 31st July 1998 and accept the case of the Plaintiff. He had submitted that because the Defendant did not reply to the Notice at Exhibit P-1, the Court will have to accept the stand of the Plaintiff, accordingly, the Plaintiff’s Suit should be decreed. 7. He had drawn my attention to the terms of the said declaration and had submitted that the Plaintiff is entitled to recover the amount claimed in the plaint alongwith interest. 8. Learned Counsel for the Plaintiff had therefore submitted that once the case of the Plaintiff as regards advancement of the monies to the Defendant is accepted, the Court will also have to accept the case of the Plaintiff as regards creation of charge in regard to the property at Bhivandi. He had submitted that the Plaintiff is entitled to decree as prayed. 7 S.2704.01Judg..sxw 9. I have considered the record and submissions advanced by the learned Counsel for the Plaintiff. The case of the Plaintiff rests on the declaration purported to have been executed on 31st July 1998. Though the learned Counsel for the Plaintiff had relied upon the said declaration on merits, the said declaration cannot be read by the Court as the said document has not been proved by the Plaintiff through his examination in chief. At the stage of marking of the documents, this document was marked as ‘X’ for identification as the Plaintiff did not prove the document as per Indian Evidence Act. The Plaintiff has not proved this document through any other witness. In the result, this declaration purported to have been executed on 31st July 1998 cannot be used in favour of the Plaintiff. It may be true that the said Notice has been served upon the Defendant and it is not replied however, that by itself is not sufficient to accept the case of the Plaintiff and pass an order in his favour. 10. In the result, except the bare word of the Plaintiff in his evidence about his case as a whole, there is no documentary evidence to show that the Plaintiff had advanced to the Defendant a sum of Rs.11,36,641/- as also the Defendant had 8 S.2704.01Judg..sxw agreed to pay the said amount alongwith the late payment charges. The Plaintiff is a commission agent and dealing in yarns. Surely looking to the fact that a sum of Rs.11,36,641/- was advanced by way of a loan, this transaction must have figured in his books of accounts. The Plaintiff has not produced the books of account maintained by him in due course of business. In the result, the case of the Plaintiff that he had advanced monies to the Defendant cannot be accepted and therefore, the Plaintiff’s case that the agreement between him and the Defendant for payment of monies is valid and subsisting cannot be accepted. 11. In view of the above, answer to all the points which are framed as above will have to be given in the negative. Consequently, the Plaintiff’s Suit will have to be dismissed. 12. For the reasons mentioned aforesaid, I pass the following decree :- (i) The Plaintiff’s Suit is dismissed. (ii) There shall be no order as to costs. 9 S.2704.01Judg..sxw 13. After the aforesaid Judgment is delivered, learned Counsel for the Plaintiff prays that the injunction granted against the Defendant in Motion No.1958 of 2001 should be continued for some time. The request is rejected. (R.Y. GANOO, J.)