((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.337 OF 1989 Vinay Laxmidas Shah Plaintiff 84/3, S.V.Road, Ratal Apartment, Santacruz (W), Mumbai. versus 1. M/s.Chandrakant Brothers, Mumbai. 2. Chandrakant Chhaganlal Shah since deceased through LRs. 3. Shah Vimal Chandrakant, Mumbai. 4. Shah Rasiklal Chhaganlal, Mumbai. 5. Shah Laxmidas Chhaganlal, Mumbai. 6. Shah Mina Laxmidas, Mumbai. Defendants Mr.Ramesh Jain i/by Kusum Jain for plaintiff. None for defendants. CORAM : A.S.OKA, J. DATE : 11th November 2008 JUDGEMENT :- 1. The suit is placed under the caption of "undefended suits for ex-parte decree". In this suit filed under Order XXXVII of the Code of Civil Procedure, 1908, on 28th August 1989 unconditional leave to defend was granted in favour of the defendants. However, written ((-2-)) statement has not been filed by the defendants. 2. According to the case of the plaintiff, he is the only legal representative of his deceased wife. The first defendant is a partnership firm and second to sixth defendants are partners of the first defendant firm. It is the case of the plaintiff that his deceased wife during her lifetime has advanced Sarafi Loans to the defendants at the agreed rate of interest of 18% p.a.. An account was maintained of the loan granted by the plaintiff’s wife. From time to time statements of account were furnished by the defendants. Last such account statement was furnished on 2nd November 1986 which was signed by the fifth defendant on behalf of the first defendant wherein a sum of Rs.59,367=46 ps. was shown to the credit of deceased wife of the plaintiff as due and payable by the defendants to her. 3. It is stated by the plaintiff that after the demise of his wife in October 1984, the account of her estate was continued in her name. Though the plaintiff demanded the payment of amount due and payable to his wife, the defendants failed to pay the amount. By ((-3-)) Advocate’s letter dated 10th October 1988, the plaintiff called upon the defendants to pay the said amount of Rs.59,367=46 ps. and interest thereon of Rs.20,427/- from 3rd November 1986 to 30th September 1988. Though the notice was duly served, there was no response from the defendants. Therefore, the present suit has been filed. 4. The learned counsel for the plaintiff has today tendered an affidavit by way of evidence of one Mr.Badresh Motiwala, the constituted attorney of the plaintiff. The said affidavit is taken on record and is marked "X" for identification. Along with said affidavit, learned counsel for the plaintiff has tendered on record three documents along with a list. The compilation of documents is taken on record and marked "Y" for identification. 5. In the compilation of documents the plaintiff has placed on record the statement of account signed by fifth defendant on behalf of first defendants. A true translation of the said statement of account has also been produced. The said statement of account shows that the defendants were liable to pay a sum of ((-4-)) Rs.59,369=45 ps. as on 2nd November 1986. An office copy of the advocate’s notice has also been produced along with the postal acknowledgements signed by some of the defendants and/or returned envelopes. 6. In the plaint as well as in the affidavit filed today it is stated that the amount was lent by the plaintiff’s wife to the defendants for the business of the defendants at the agreed rate of interest @ 18% p.a.. This statement has not been controverted by the defendants. 7. Thus, the case made out by the plaintiff in the plaint has been duly proved and the plaintiff is entitled to a degree. 8. Hence, I pass following order :- (a) The suit stands decreed as prayed; (b) The plaintiff will be entitled to costs of the suit from the defendants; (c) The plaintiff will be entitled to refund of court fees, if any, as per Rules; (d) Certified copy is expedited. (A.S.OKA, J.)