Bangalore District Court
Misha Biyani vs Shubra Bidani on 25 June, 2024
Judgment 1 O.S. No. 4684/2020
KABC010171152020
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BENGALURU CITY.
PRESENT: K. Vidya, B.Sc., M.A., LL.M.,
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
O.S./4684/2020
Dated this the 25th day of June 2024
BETWEEN:
PLAINTIFF:-
Mrs. Misha Biyani
W/o Abhishek Biyani,
Aged about 32 years,
R/at No.64, 2nd Cross, 2nd Main,
3rd Phase, J.P.Nagar, Bengaluru - 78.
Represented by her SPA Holder:
Mr.Dhruv Modi.
(By Sri.K.Geetha., Advocate)
Judgment 2 O.S. No. 4684/2020
DEFENDANT:
Mrs. Shubra Bidani,
W/o Rohit Bidani,
Aged about 50 years,
M/s Mayank Enterprises,
B 8/8, Golf Green,
Phase-1,
Kolkata- 700095.
(Ex-parte)
Date of Institution of Suit 03/10/2020
Nature of Suit Recovery of Money
Date of Commencement of 01/12/2022
Recording of evidence
Date of which Judgment 25/06/2024
was pronounced
Total Duration Year/s Month/s Day/s
03 08 22
(K.VIDYA)
XXXIX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BENGALURU CITY.
Judgment 3 O.S. No. 4684/2020
::J U D G M E N T::
That, the Plaintiff has filed instant suit for recovery of suit loan of ₹.08,01,500/- as against the Defendant with supplication by taking into consideration force majeure period of covid -19 Pandemic and to eschew delay of two months in bringing suit as the Standard Operative Procedure coined by Honb'le High Court of Karnataka was in force and had immuned the delay period and had extended period of limitation omnibus in all arena of litigation, interalia prayed to mould such other reliefs this court deems fit in facts and circumstances of case.
Judgment 4 O.S. No. 4684/2020
2. The Factual Matrix circumventing Plaint averments is as follows:-
i. That, the Plaintiff and the Defendant who were very well acquainted with each other, wherein the Defendant who was carrying business of whole sale distribution of ready snacks and chips and other related products in the name and style of "M/s Mayank Enterprises" along with her husband had approached Plaintiff during her dire financial necessities and had sought for hand loan of ₹.10,00,000 and in furtherance to this had assured that she would repay within short period, wherein which the Plaintiff heeding to the words of Defendant owing to her financial conditions Judgment 5 O.S. No. 4684/2020 had paid a sum of ₹.10,00,000/- by way of RTGS dated 23/02/2017, through HDFC Bank, Banashankari Branch, Bengaluru vide Account Transfer No.0000000000000006, in the name of Mrs. Shubra Bidani so as Defendant herein. ii. That, towards borrowal of the above said loan amount the Defendant had issued the cheque towards repayment, the said cheques were not presented to the Bank as requested by the Defendant, and subsequently the Defendant has requested the Plaintiff to return the cheque on assurance that she would repay the amount by cash. Accordingly the Plaintiff has Judgment 6 O.S. No. 4684/2020 returned all the cheques to Defendant, but to the dismay the Defendant has not paid any amount on return of cheques and she failed to pay the principal and interest also. iii. That, in light of which, finding no other alternative, the Plaintiff was constrained to cause legal notice to the Defendant on 29/02/2020, but to the dismay the Defendant has failed to comply the said notice. In light of which the Plaintiff finding no other alternate was constrained to file the instant suit seeking redress before this court.
3. That, despite due service of summons, the Defendant did not grace to knock the doors of Judgment 7 O.S. No. 4684/2020 court, in light of which having due regards she was placed ex-parte.
4. That, the Plaintiff in support of suit claim, had examined himself as PW.1, interalia coupled with oral evidence got exhibited documents at Ex.P1 to Ex.P4 during ocular evidence and closed his side.
5. That, after perusal of oral and documentary evidence coupled with the arguments addressed by Learned Counsel from Plaintiff Side Sri.K.G the points which arise for consideration is as follows:-
:POINTS:
1.Whether the Plaintiff is entitled for recovery of ₹.08,01,500/- by condoning the period of force majeure?
2.If so, whether the plaintiff is entitled for the interest?
Judgment 8 O.S. No. 4684/2020
3.What order or decree?
6. That, On careful perusal of oral and
documentary evidence and after giving anxious consideration to the arguments addressed by the Learned Counsel for Plaintiff, this court answer the points as follows:-
Point No.1: - In the Affirmative. Point No.2 :- Does not survive for consideration (in light of the discussions infra) Point No.3: - As per final order for following :R E A S O N S:
7. Point No.1 & 2:- As the aforementioned points coined by this court are intricated with each other they are taken together for consideration in order to Judgment 9 O.S. No. 4684/2020 avoid repetition of facts and appreciation of evidence in present fora.
8. It is evident from records that, the Plaintiff has filed suit against Defendant for recovery of suit amount of ₹.08,01,500/- which was received by Defendant towards improvisation of business during period of Covid-19 on oral submission without execution of any documents.
9. That,the Plaintiff in order to prove suit transaction, examined her Special Power of Attorney Holder as PW.1 and deposed in consonance to the facts asserted in the plaint. In addition to this, during the time of ocular evidence, through PW1 got marked documents at Ex.P1 to Ex.P4, wherein Ex.P1 comprise Special Power of Attorney executed Judgment 10 O.S. No. 4684/2020 by Plaintiff in favour of Dhruv Modi, Ex.P2 comprise the computerized statement of account of the Plaintiff maintained revealing the said RTGS transaction. Ex.P3 comprise office copy of legal notice dated 29/02/2020, Ex.P4 comprise postal receipt depicting due issuance of notice.
10. In this context it is vital to state that, the documents exhibited at Ex.P1 to Ex.P4 reinforces the fact that Defendant had received ₹.10,00,000/- from Plaintiff due to her financial crisis and thereafter the Defendant has paid a sum of Rs.2,00,000/- by way of cheque bearing No.124818, dated 24/07/2017 and a sum of ₹.66,500/- towards interest by way of cheque bearing No.124823 dated 28/08/2017 and had Judgment 11 O.S. No. 4684/2020 failed to pay the remaining dues as pleaded by the Plaintiff.
11. At this juncture, after close perusal of Oral and Ocular Evidence placed by the Plaintiff, it fortifies the fact that the Defendant who had given go-bye to her promise is liable to repay the amount to the Plaintiff and there are no circumstances to disbelieve the version of the Plaintiff for the reasons that the Defendant has remained ex-parte and it emulates the court to draw adverse inference against the Defendant and preponderance of evidence tilts in favour of Plaintiff. Akin to this the Learned Counsel representing Plaintiff Sri.K.G. strenuously buttressed during arguments on these lines and thereupon prayed to decree suit in favour of Plaintiff and in second limb of arguments urged Judgment 12 O.S. No. 4684/2020 that there was closure of all courts all over State of Karnataka due to outbreak of COVID-19 Pandemic, wherein which akin to this the activities in all sphere had come to standstill which had created fear and furor wherein which as a safety measure commencing from 23/03/2020 limitation period got extended till 30/09/2020 periodically akin to extraneous circumstances of force majeure period court has to eschew delay of two months in bringing suit, and looking into the attending circumstances prayed to mould such other reliefs this court deems fit in facts and circumstances of case interalia during tenure of arguments filed memo along with orders passed by Hon'ble Apex Court in batch of Miscellaneous Applications commencing from 21/2022 to 665/2021 clubbed Judgment 13 O.S. No. 4684/2020 with sum moto Writ Petition in respect of Extension of Time Limitation.
12. That, on the said backdrop it becomes impeccable to state that in absence of defence and contra evidence, Plaintiff is entitled for the reliefs as sought for wherein which in the given set of circumstances Plaintiff had transferred sum of ₹10,00,000/- as per request of Defendant through R.T.G.S, and notice came to be issued on 29/02/2020 when the Defendant had defaulted in not paying said sum as agreed upon when the given set of factuals are juxta posed with the Orders passed by Hon'ble Apex Court in respect of condonation of delay said case safely fits the bill and thus it is humbly opined that the Plaintiff is entitled for the relief as sought for, wherein which Judgment 14 O.S. No. 4684/2020 while touching the aspect of Interest, the Plaintiff has not claimed interest owing to the nature of transaction it is held that imposing interest over the principal amount does not arise for consideration, accordingly Point No.1 is answered in the affirmative and Point No.2 does not survive for consideration.
13. Point No.3:- For the reasons assigned in point No.1 & 2 and resultantly on the backdrop of discussions arraigned therein this court proceeds to pass following:-
:ORDER:
That, the suit filed by the Plaintiff as against the Defendant for recovery of suit amount is decreed in following terms:
Judgment 15 O.S. No. 4684/2020 Consequently, it is held that Plaintiff is entitled to recover sum of ₹08,01,500/-(Rupees eight Lakhs one thousand and five hundred only) which sans interest.
Office to draw decree
accordingly.
(Directly dictated to the grade III stenographer over computer system, the computer script generated by her is corrected, rectified and revised by me, and then pronounced in open court on this the 25th day of June 2024) (K.VIDYA) XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
ANNEXURES WITNESSES EXAMINED FOR THE PLAINTIFF:
PW-1 Dhruv Modi Judgment 16 O.S. No. 4684/2020
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 Special Power of Attorney Ex.P2 Statement of Account Ex.P3 Office copy of legal notice Ex.P4 Postal receipt WITNESSES EXAMINED FOR DEFENDANT
---NONE---
DOCUMENTS MARKED FOR DEFENDANT:
---NIL---
XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
Digitally signed by KALASHETTY
KALASHETTY VIDYA
VIDYA Date:
2024.06.27
12:53:24 +0530