Final Order 1

Order Details: Ex-parte Judgement
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MHCC010004312019
Presented on : 09-01-2019
Registered on : 20-02-2019
Decided on : 09-11-2022
Duration : 03Y, 10M,00D
EXHIBIT-10
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 310 OF 2019
M/s. Kaveesha Foods Through its
POA Holder Mr. Hiten Doshi,
aged about 40 years, residing at
9, Prasthan Mandpeshwar Road,
Borivali(West), Mumbai-400 103.
...Plaintiff
Versus
Brunt Crust Hospitality Pvt. Ltd.
1A, Ground Floor, 44 Khatau
Building, Shahid Bhagat Singh
Road, Fort, Mumbai-400 001.
...Defendant
Appearance :
Ld. advocate Ms. Mugdha Modi for plaintiff.
None for defendant (
Exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 09/11/2022
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JUDGMENT
( Dictated and pronounced in open Court)
This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil Procedure, 1908 (for short 'CPC') for recovery of principal
amount of Rs.1,06,993/- along with interest thereon at the rate of 18%
per annum till its realization.
Plaintiff’s case-
2. Plaintiff is a proprietary concern having business of supply
of food items to various Business Organizations, Malls, etc. The
defendant is engaged in the business of Hotel Management. Plaintiff, at
the request of defendant, supplied certain food items to the defendant
during the period 14-12-2017 to 28-12-2017. Accordingly invoices to
the tune of Rs.1,06,993/- were raised from time to time. No complaint
whatsoever was received with respect to goods supplied. Defendant,
failed to make payment, in spite of the demand notice dated
24-09-2018 issued by the advocate for plaintiff. Hence, the present suit.
3. Defendant was duly served with Writ of Summons on
28-01-2020. However, defendant did not appear before this Court and
as such suit proceeded
exparte.
4. In support of claim, plaintiff filed his affidavit of claim at
Exhibit-4 and reiterated its claim of recovery of Rs.1,06,993/ along with
interest at the rate of 18% p.a. Plaintiff has filed and relied upon
following documents.
Sr.
No.
Exhibit
No. Particulars
1 Exh.6
Colly
Copies of Tax Invoices raised by the plaintiff to the
defendant from 14-12-2017 to 28-12-2017
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2 Exh.7 The office copy of the demand notice dated 24-09-2018
3 Exh.8 Copy of ledger account of the defendant maintained by
the plaintiff.
4 Exh.9 The Certificate u/s. 65B of The Evidence Act.
5. So as to decide the present suit, following points arise for
my consideration. I have recorded my findings along with reasons on
the said point as under :-
Sr. No. Points/Issues Findings
1. Whether plaintiff is entitled to
recover principal amount of
Rs.1,06,993/- from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs.1,06,993/-from the
defendant along with
interest at the rate of
12% p.a. from date of
filing of the suit till
realization.
2. What order and decree? Suit is partly decreed
as per final order.
REASONS
6. Sub Rule (3) of Rule 2 of Order XXXVII of CPC, provides
that if the defendant, on receipt of summons, defaults to cause
appearance, the allegations in the plaint shall be deemed to be admitted
by him and the plaintiff shall be entitled to the decree. In matter in
hand, admittedly defendant failed to cause appearance, hence plaintiff
would get benefit of the aforesaid rule.
7. It is settled principal that Court, even in exparte cases, not
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supposed to pass decree blindly. Therefore, it is imperative to assess the
claim of the plaintiff on the strength of the evidence adduced on record.
As to point No.1-
8. Plaintiff has examined one Hitesh Doshi, Power of attorney
holder of plaintiff. He has reiterated contentions of plaint and seeks
decree. Plaintiff has also placed on record various Tax Invoices as well
as office of of demand notice. On perusal of the Tax Invoices, it appears
that all the eight Invoices issued from time to time by the plaintiff
against supply of goods, do bear the acknowledgment at the hands of
defendant. This fact fortifies the contentions of the plaintiff about
supply of goods.
9. The office copy of Notice placed on record (Exh.7) do
reveal that defendant was asked to pay an amount of Rs. 1,08,055/-
against the supply of goods. The copy of postal receipt and the postal
acknowledgment showing delivery of notice are also placed on record.
It has been contended by ld. advocate for the plaintiff that in spite of
receipt of notice, defendant to pay the outstanding bill. The plaintiff has
also placed on record copy of ledger account (Exh.8) which shows that
an amount of Rs.1,06,993/- is due and outstanding from defendant as
on 28-12-2017.
10. As the suit proceeded
exparte there is no
contra evidence
to dispute the contentions of the plaintiff. The plaintiff has placed on
sufficient materials to boost the contention of payment due from the
defendant. Therefore, I hold that the plaintiff has supplied goods to the
defendant and defendant failed to pay an amount of Rs.1,06,993/- to
the plaintiff. As such plaintiff is entitled for decree to the extent of the
said amount.
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11. Ld advocate for plaintiff claims interest at the rate of 18%
p.a. She invited attention of this Court on Tax Invoices placed on
record. The Tax Invoices, at bottom, do bear the condition that if
defendant fails to pay the amount against the Tax Invoices within 15
days from the date of delivery, defendant would be liable to pay interest
thereon at the rate of 18% p.a. till its realization. Admittedly, there is no
separate Agreement as such about the rate of interest, apart from the
Tax Invoices. The claim of the interest at the rate of 18% p.a., in
absence of agreed rate of interest, seems excessive. However as the
amount of plaintiff is withhold by the defendant since considerable
time, plaintiff deserves reasonable interest on the outstanding amount.
Considering the nature of transaction i.e. marchanitle transaction, and
the rate of interest of Nationalized bank on lending, I find it just and
proper to grant interest at the rate of 12% p.a. from the date of filing of
the suit till realization of the amount.
As to point No.2-
12. From the findings recorded to the point No.1, it is clear
that plaintiff is entitled to recover an amount of Rs.1,06,993/- from the
defendant along with interest at the rate of 12% per annum. Hence, in
answer to point No. 2, I proceed to pass following order.
ORDER
1) Summary Suit No. 310 of 2019 is hereby partly decreed with
cost.
2) Defendant do pay an amount of Rs.1,06,993/-(Rupees One Lakh
Six Thousand Nine Hundred Ninety Three Only) to the plaintiff
along with interest at the rate of 12 % p.a. from the date of filing
of suit i.e. 09-01-2019 tll its realization.
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3) Plaintiff is entitle for refund of court fees, as per rules.
4) Decree be drawn up accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date- 09/11/2022. Court Room No.61
Dictated on: 09-11-2022
Transcribed on: 11-11-2022
Signed on: 14-11-2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14-11-2022 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
09-11-2022
JUDGMENT/ORDER signed by P. O. on 14-11-2022
JUDGMENT/ORDER uploaded on 14-11-2022
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