1 908.s-2268-03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 2268 OF 2003. Jyoti Narendra Shah, Office at RNA House, 1st Floor, 50, V.N. Road, Fort, Mumbai-400 023. ..Plaintiff. vs. Harilal Jerambhai Chauhan, Hill View, Plot No.C-140, Nandanvan Colony, Panchgani-412805, Maharashtra. ..Defendant. .... Ms. Deepti Panda, i/b. Dhru Shah & Co., for Plaintiff. None for Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 6TH SEPTEMBER 2011. JUDGMENT : This Suit has appeared on board under the caption ‘for Ex- parte Decree’. The Plaintiff has already filed her Affidavits in lieu of Oral Examination-in-Chief dated 21st June 2011 and 4th August 2011 along with compilation of documents and the same is taken on record and marked Exhibits ‘X’ and ‘X-1’ respectively. A compilation of documents is also filed on behalf of the Plaintiff. The Defendant was served with the Writ of Summons, as can be seen from the Affidavit proving Service dated 11th September 2003. The Defendant has failed to appear before this Court. 2. The Plaintiff is a practicing Advocate and Solicitor. The Defendant is an individual carrying on business as a Developer and residing at the address mentioned in the cause title. 2 908.s-2268-03 3. The Plaintiff has stated that in or about end of July 1998, the Defendant engaged service of Plaintiff to initiate legal proceedings in respect of a show cause notice issued by Panchgani Municipal Corporation to him in respect of the Defendant’s building constructed on plot of land bearing F.P. No. 125 to 128/D situate at Panchgani, Taluka Mahableshwar. The Defendant instructed the Plaintiff to file appropriate legal proceedings in that regard and also instructed Plaintiff to engage Junior/Senior Counsel as Plaintiff may deem fit and the Defendant agreed to pay the Plaintiff’s fees. 4. The Plaintiff has stated that pursuant to the Defendant agreeing to pay professional fees of the Plaintiff and also fees of the Junior/Senior Counsel that may be briefed from time to time, the Plaintiff adopted legal proceedings from time to time being three Civil Application Nos. 6946 of 1998; 2318 of 1999 and 3110 of 2000, all in Writ Petition No. 2754 of 1997. Counsel were engaged by the Plaintiff in the said Civil Applications who appeared under instructions of the Plaintiff from time to time. The Plaintiff has stated that after several hearings, all the above Civil Applications were disposed of vide orders passed by the Court from time to time resting with the last order of the Court dated 19th July 2000. Copies of the said three unsigned Civil Applications which according to the Plaintiff were signed by the Defendant in her presence before the Court Officer and then filed in the said proceedings i.e. Writ Petition No. 2754 of 1997, are tendered in Court. The same are taken on record and marked Exhibits ‘P-1’, ‘P-3’ and ‘P-5’, respectively. The Defendant filed an undertaking in Civil Application No. 6946 of 1998. A copy of the undertaking is tendered in Court. The same is taken on record and marked Exhibit ‘P-2’. Copies of the orders dated 3 908.s-2268-03 12th July 1999 and 19th July 2000 passed in Civil Application Nos. 2318 of 1999 and 3110 of 2000 (Exhibits ‘P-3’ and ‘P-5’) are tendered in Court. The same are taken on record and marked as Exhibits ‘P-4’ and ‘P-6’ respectively. 5. The Plaintiff has stated that hearings were also held in Panchgani for a period of two days before a Monitoring Committee in respect of the legal proceedings adopted by the Plaintiff on behalf of the Defendant when the Plaintiff attended such hearings accompanied by the Defendant. 6. The Plaintiff has stated that pursuant to disposal of the Civil Application No. 3110 of 2000 by an order dated 19th July 2000, the Defendant was required to submit revised plans of his building for which letters were addressed to the Defendant but there was no reply from the Defendant. 7. The Plaintiff has stated that the Defendant made on account payments to Plaintiff towards her fees and also Counsel fees aggregating to Rs.80,000/- out of which Plaintiff made payments to Counsel. The Plaintiff states that the Plaintiff then addressed correspondence to the Defendant requesting for further on account payment of Rs.1,25,000/- vide her letters dated 30th August 2000 and 6th October 2000 as set out in para 5 of the Affidavit in lieu of Oral Examination-in-Chief dated 21st June 2011. The said letters are received by the Defendant. A copy of the letter dated 30th August 2000 bearing endorsement of Mr. Williams, Manager of the Defendant is tendered in Court. The same is taken on record and marked Exhibit ‘P-7’. A copy of the letter dated 6th October 2000 along with original R.P.A.D. Slip acknowledged by the Defendant 4 908.s-2268-03 bearing his signature which the Plaintiff identifies, is tendered in Court. The same is taken on record and marked Exhibit ‘P-8’. 8. The Plaintiff has also stated that she addressed a letter to the Defendant on 14th November 2000 by Registered Post raising her Bill of Costs and requested for payment of balance outstanding of Rs. 1,26,500/- comprising fees of Plaintiff as also Counsel fees as stated in para 6 of the Affidavit in lieu of Oral Examination-in-Chief dated 21st June 2011. The said letter of 14th November 2000 was acknowledged by Defendant but not replied to. A copy of the said letter dated 14th November 2000 along with original receipt of acknowledgment signed by the Defendant is tendered in Court. The same is taken on record and marked Exhibit ‘P-9’. Copies of the two dockets, receipt and memo of fees aggregating to Rs.75,500/-, as more particularly set out in paragraph 6 of the Affidavit in lieu of oral Examination-in-Chief dated 21st June 2011 are taken on record and marked Exhibit ‘P-10’. The Plaintiff has stated that another reminder letter dated 9th January 2001 was addressed to the Defendant reminding him to pay the balance outstanding amount of Rs. 1,26,500/- as per Bill of Costs dated 14th November 2000 and stating that the bill would carry interest @ 18% per annum from the date thereof as set out in para 7 of the Affidavit in lieu of Oral Examination-in-Chief dated 21st June 2011. The Plaintiff has stated that inspite of assurances by the Defendant as also through his son and manager, the Defendant failed and neglected to pay balance outstanding fees. A copy of the letter dated 9th January 2001 along with original dispatch UPC Slip is taken on record and marked Exhibit ‘P-11’. 9. The Plaintiff has stated that further reminder letters dated 8th 5 908.s-2268-03 June 2011, 11th September 2010 and 27th February 2002 were sent by Under Certificate of Posting to the Defendant which letters have not been returned to the Plaintiff by the postal authority and were not replied to by the Defendant as set out in para 7 of the Affidavit in lieu of Oral Examination-in-Chief dated 21st June 2011. The same are taken on record and marked Exhibits ‘P-12’, ‘P-13’ and ‘P-14’ respectively. 10. The Plaintiff has stated that in or around October 2003, after filing of present Suit, Defendant’s son Mr. Atul approached the Plaintiff for personal legal consultation and assured the Plaintiff that balance outstanding fees of Plaintiff would be cleared soon and gave a cheque for Rs. 15,000/- on behalf of Defendant towards Plaintiff’s outstanding fees and assured that balance fees would be cleared soon. This was recorded vide the Plaintiff’s Advocate letter dated 22nd October 2003 addressed to the Defendant Under Certificate of Posting as set out in para 8 of the Affidavit in lieu of Oral Examination-in-Chief dated 21st June 2011. A copy of the said letter dated 22nd October 2003 is taken on record and marked Exhibit ‘P-15’. 11. I have gone through the averments made in the Plaint and compilation of Documents annexed to the Affidavit in lieu of Oral Examination-in-Chief of the Plaintiff dated 21st June 2011. Exhibits ‘P-1’ to ‘P-6’ shows that the Plaintiff has filed legal proceedings on behalf of the Defendant in this Court and has filed undertakings of the Defendant in the Court as well as obtained the orders in the legal proceedings filed by her on behalf of the Defendant. The Defendant has made on account payment to the Plaintiff of Rs.80,000/-. Exhibits ‘P-7’ and ‘P-8’ shows that the Plaintiff has called upon the 6 908.s-2268-03 Defendant to make further on account payment of Rs. 1,25,000/- which letters are received by the Defendant. Exhibit ‘P-9’ shows that a sum of Rs.1,26,500/- (after giving credit of advance received to the tune of Rs.80,000/-), is the bill of costs raised by the Plaintiff on the Defendant. The unpaid Memo of Counsel fees is Exhibit ‘P-10’. By Exhibits ‘P-11’ to ‘P-15’, the Plaintiff recorded that she has not received any payment towards the said Bill of Costs and requested the Defendant to forward his cheque for Rs. 1,26,500/- at the earliest. It is therefore, also established that the Defendant has failed to pay the fees of the Plaintiff as called upon by the Plaintiff. 12. The Defendant has not filed any appearance nor any written statement and, therefore, the entire case put forth by the Plaintiff has gone unchallenged. There is no reason as to why the case put up by the Plaintiff should not be accepted. The Plaintiff has, therefore, as set out in paragraph 10 of the Affidavit in lieu of Oral Examination- in-Chief dated 21st June 2011 sought an order and decree for a total sum of Rs. 1,83,425/- comprising of the principal sum of Rs. 1,26,500/- along with interest at the rate of 18% per annum for sum of Rs. 56,925/- on the said principal sum from 10th January 2011 till 11th July 2003, i.e. the date of filing of the Suit. The Plaintiff has also claimed further interest from the date of filing of the Suit till payment and/or realization. 13. In view thereof, following order is passed in the Suit :- (1) The Defendant is ordered and decreed to pay to the Plaintiff a sum of Rs. 1,83,425/- with interest at the rate of 18% per annum on the principal sum of Rs.1,26,500/- from the date of filing of the Suit till payment and/or realisation. However, a credit of Rs.15,000/- shall be 7 908.s-2268-03 given to the Defendant in respect of the decreetal amount. (2) The Defendant shall pay costs of this Suit to the Plaintiff. (3) Refund of Court fees, if any, as per Rules. 14. In view of the above, Suit stands disposed of. [ S.J. KATHAWALLA, J. ]