Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 Sum. Suit No. 128 of 2018
Filed on : 10.01.2018
Registered on : 01.02.2018
Decided on : 11.02.2020
Duration : Yr-02 Mth-00 Ds-11
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.128 OF 2018
(CNR NO.MHCC01-000395-2018)
Exhibit-19
M/s. Polycab Wire Pvt. Ltd.
A Company incorporated under the
Companies Act, 1956 having its
Corporate Ofce at Polycab House,
771, Pandit Satwalkar Marg,
Mahim (W), Mumbai – 400 016.
Through its Power of Attorney holder
Mr. Chandrashekar Shetty. ….Plaintif
V/s.
M/s. Ivan Multitrading Pvt. Ltd.
A Company having its ofce at
Kisan Nivas, Raghukul Bldg.,
Kopari Gaon, Road No.15,
Thane – 400 603. ... Defendant
SUIT FOR RECOVERY OF RS.30,77,251/-
CORAM : HER HONOUR JUDGE
Smt. SABIHA G. SHAIKH
DATED : 11th February, 2020.
(C.R.No.59)
Appearance:-
Ms. Rashami Tanbadkar I/b Bagla & Associates, Advocate for
the Plaintif.
Exparte against Defendant.
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of
Civil Procedure 1908.
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Judgment 2 Sum. Suit No. 128 of 2018
The facts of the case are as under :
2. The Plaintif is a Registered company incorporated under
the Companies Act, 1956 and carrying on business of various
sizes and types of Electrical PVC Cables and Wires with copper
and aluminum conduct etc. The defendant is a Private Limited
Company Incorporated under Indian Companies Act, 1956.
Pursuant to purchase order placed by the defendant, plaintif
has supplied and delivered to the defendant Cable LT Service
Cable 2C X 4 sq. mtr. and electric cable materials vide
invoices for a aggregate sum of Rs.76,88,144/-. It is contended
by the plaintif that defendant accepted and used the
materials supplied under invoices nos.6673, 6681 and 6712
amounting to Rs.30,77,251/-. The defendant failed to pay the
total sum of Rs.30,77,251/- inspite of various requests made
by the plaintif and receipt of legal notices 03.03.2017. Hence,
plaintif is constrained to fle the suit for recovery of the said
amount. The total suit claim of the plaintif for Rs.30,77,251/-.
3. The suit summons were duly served on the defendant
but he failed to appear. Hence, suit is posted for judgment as
per order XXXVII Rule 2(3) of Code of Civil Procedure 1908
judgment.
4. The following points arise for my determination and my
fndings thereon are as under for the reasons stated there
under:-
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Judgment 3 Sum. Suit No. 128 of 2018
Sr.
No.
POINTS FINDINGS.
1. What is due and payable from
the defendant to the
plaintif ?
A] If yes, what would be the
rate of interest?
Amount of
Rs.30,77,251/-
with interest
@ 12 % per
annum.
2. What order and decree? As per fnal order.
REASONS
5. Mr. Chandrashekhar Shetty has fled afdavit on behalf
of plaintif at Exhibit-7. In order to prove the case of the
plaintif fled following documentary evidence.
Exhibi
t.
No.
Description of documents
9 Copy of the resolution dated 28.05.2018.
10 Copy of relevant pages of Minutes Book pertaining
to Resolution dated 28.05.2018.
11 Copy of purchase order dated 19.09.2014 bearing
no.PO/IVAN/NGP/CAP/14-15/034.
12 Copy of original terms and conditions of purchase
order sent by the defendant company to the
plaintif.
13 Ofce copy of the original delivery challan cum
tax invoice bearing no.6673 dated 14.11.2014,
6681 dated 14.11.2014 and 6712 dated
15.11.2014.
14 Ofce copies of the three lorry receipts issued by
Baska Bombay Carriers and Associated Road
carriers limited to the defendant company
respectively evidencing the delivery of materials
to the defendant company.
15 Copies of seven emails dated 20.10.2015,
23.11.2015, 30.12.2015, 10.02.2016, 20.03.2016,
24.03.2016, 15.12.2016 respectively sent by the
plaintif company to the defendant company.
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Judgment 4 Sum. Suit No. 128 of 2018
Exhibi
t.
No.
Description of documents
16 Certifcate dated 20.06.2018 issued by the IT
department Head of the plaintif company.
17 Copy of the letter of demand dated 03.03.2017
addressed by the earlier Advocate for plaintif
company and original acknowledgment card
evidencing the receipt of the letter by the
defendant company.
AS TO POINT NO.1:
6. All the documents produced by the plaintif at list
Exhibit-9 to 17 go to establish that plaintif has supplied and
delivered total goods worth of Rs.30,77,251/- to defendant.
The documents further prove that the amount of
Rs.30,77,251/- is due and payable to the plaintif company
from defendant towards delivered of goods. But, defendant
failed to pay total amount of Rs.30,77,251/- towards purchase
of goods. The documents at list Exhibit-9 to 17 go to establish
that defendant is liable to pay Rs.30,77,251/- to the plaintif
on the date of fling of the suit towards the purchase of goods
and therefore, the defendant is avoid to pay the balance
amount to the plaintif. In this background, it is held that
plaintif is entitled to recover sum of Rs.30,77,251/- from the
defendant.
7. The plaintif has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the
rate of interest may exceed 6% per annum, if the transaction
is commercial and there is no contract pertaining to the same
between the parties. In the present case, the transaction is a
commercial one and there is no express contract existing
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Judgment 5 Sum. Suit No. 128 of 2018
between the parties as to the rate of interest. Therefore, rate
of interest at the rate of 12% per annum would be just and
proper to be awarded on the principal sum adjudged i.e.
amount of Rs.30,77,251/-. Hence, point no.1 is answered in
the afrmative.
AS TO POINT NO.2:
8. In view of discussion and fnding on point no.1, it is held
that the plaintif is entitled to recover Rs.30,77,251/- from the
defendant with interest at the rate of Rs.12% per annum from
the date of fling of the suit till its realization. Plaintif is also
entitled to recover cost of the suit from the defendant. Hence,
in answered to point no.2, I proceed to pass the following
order :
: ORDER:
1. The defendant pay Rs.30,77,251/- (Rs. Thirty
Lakh Seventy Seven Thousand Two Hundred
Fifty One Only) to the plaintif with interest at
the rate of 12% per annum from the date of
fling of the suit till its realization.
2. Defendant do pay costs of the suit to the
plaintif.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per the rules.
(Smt. S. G. Shaikh)
Ad-hoc Judge
City Civil Court,
Date : 01.02.2020 Gr. Bombay
Typed on : 11.02.2020
Described on : 11.02.2020
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Judgment 6 Sum. Suit No. 128 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
11.02.2020 05.05 pm Mr. Tushar P. Kuwar
Name of the Judge H.H.J. Sabiha.G.Shaikh.
Ad-hoc Judge.
(Court Room No.59)
Date of pronouncement of
Order
11.02.2020
Order signed by P.O. on 11.02.2020
Order uploaded on 11.02.2020
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