Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.343/2021 : 1 : Judgement
MHCC010004902018
Presented on : 11012018
Registered on : 01062018
Decided on : 10062024
Duration : YY: MM : DD
06 : 04 : 30
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 343 Of 2021
(OLD SUMMARY SUIT NO.546 OF 2018)
Exhibit37
Jayshri Enterprise (JE),
Through Jayshree Yogesh Shah,
Age 57 Years, A Proprietor of Jayshri
Enterprise (JE), A registered company under
the Company Act 1956, at present having its
office at; 2/8, Kashi Darshan, Hansoti Lane,
Ghatkopar (West), Mumbai 400 086.
Previous registered office was situated at:
2224, Sham Sheth Street, Office 19, Zaveri
Bazar, Mumbai 400002. ... Plaintiff.
V/s.
1. KUD Realtors Pvt Ltd (KUD),
A registered company under Company Act
1956, having its registered office at: 310, Sai
Infotech, R. B. Mehta Marg, Patel Chawl,
Ghatkopar East, Mumbai – 400077.
2. Mr. Udayan Shah
Age not known.
Director of KUD Realtors Pvt Ltd (KUD),
Having office at: 310, Sai Infotech, R. B.
Mehta Marg, Patel Chawl, Ghatkopar East,
Mumbai – 400077.
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3. Mr. Kantilal Shah
Age not known
Director of KUD Realtors Pvt. Ltd (KUD),
Having office at: 310, Sai Infotech, R. B.
Mehta Marg, Patel Chawl, Ghatkopar East,
Mumbai – 400077. ... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 10th DAY OF JUNE 2024
: Appearances:
Ld. Advocate Riddhi Gupta for Plaintiff.
Defendant's Exparte.
JUDGMENT
The plaintiff has filed the present suit for recovery of sum of
Rs.47,42,607/ with further interest @ 18 % per annum from the date
of filing of the suit till its full realization.
Initially the plaintiff has filed Summary Suit No.546 of 2018 for
recovery of above said amount against the defendants. However, later
on as per office order dated 09.04.2021, it was converted into the
Commercial Suit.
2. Briefly stated facts of the case are as under:
The plaintiff is the Proprietor of ‘Jayshri Enterprise (JE)’
registered company under the Company Act, 1956. It is dealing in
trading of Iron & Steel in and around Mumbai. The daughter viz., Vidhi
Shah of the plaintiff was helping hand in the said business of the
plaintiff.
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Com. Suit No.343/2021 : 3 : Judgement
3. It is submitted that, in the year 2007, the plaintiff met the
defendant No.2 (Director of ‘Total Space Management Pvt. Ltd.
(TSMPL)’ & ‘KUD Realtors Pvt. Ltd., (KUD)’. At that time, the defendant
No.2 was working with partnership Firm ‘M/s. Meghdoot Enterprises’ at
Bhiwandi. The defendant No.2 offered business to Jayshri Enterprise for
supply of construction material to his business sites. The plaintiff started
supplying steel material to ‘M/s. Meghdoot Enterprises’ since year 2007,
where defendant No.2 was the partner.
4. It is further submitted that, in the year 200910, defendant Nos.2
and 3 have jointly started construction firm i.e., defendant no.1. The
defendant No.1 was into the business of construction of commercial
offices in and around Bhiwandi. Defendant Nos.2 and 3 being directors
of defendant No.1, handling day to day affairs of it. They have
demanded construction material supply from the plaintiff for defendant
No.1. Therefore, the plaintiff started business of supplying construction
material to defendant No.1 since 200910. After few months, defendant
Nos.2 and 3 on behalf of defendant No.1 offered job to plaintiff's
daughter namely Vidhi Shah as a Manager. Vidhi Shah has accepted
said offer.
5. The plaintiff was supplying construction material to the
defendant No.1. The payment terms for bill settlement whereof 30 days
from the date of bill. The business relations were continued on the same
terms over period of 7 years. Since the year 201314, defendant Nos.2
and 3 were delaying payments by 60 days to 90 days, 120 days and so
on. From the year 201415, payment was going worse and every time
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defendants giving reason of financial crisis and request to consider their
family relations and assured to make payment very shortly.
6. It is submitted that, due to assurance given by defendant Nos.2
and 3 on behalf of defendant no.1, the plaintiff was supplying material
to defendant No.1, assuming that defendants will make payment slowly
and gradually. Suddenly, defendant Nos.2 and 3 stop making payment
to the plaintiff since 201415 and started giving excuses of their
company's financial misshape.
7. It is further submitted that, when defendants realised that there
was pending dues of each year since 2013 till 2015, they requested to
the plaintiff to settle the accounts by way of allotting commercial units
of another commercial project ‘KUD Business Avenue’, Village Val,
Bhiwandi, against a trading / business of plaintiff and pending payment
dues against the material supplied from the plaintiff and other company
of plaintiff's daughter i.e., ‘U. V. Corporation’. To gain the confidence of
the plaintiff, the defendant No.2 on behalf of defendant No.1, agreed
and orally allotted the plaintiff two business units at the same project
on allotment letters. Hence, in the month of December 2014, the
plaintiff demanded registration of those units. However, defendant No.2
on behalf of defendant No.1 refused to do so. He further assured that
they will make payment very shortly by cheque and to gain further
confidence, they cleared plaintiff's two bills in the month of December
2014.
8. It is further submitted that the Income Tax Returns of the
company is showing as outstanding dues for the year 2015. In the
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Com. Suit No.343/2021 : 5 : Judgement
month February 2015, Vidhi Shah left the job due to unreasonable
terms and conditions, as well as, indifferent behaviour towards her. The
plaintiff demanded payment orally many times to defendant Nos.2 and
3. Defendants assured to clear the outstanding dues, but failed to do so.
Thereafter, few meetings had taken place in between the plaintiff and
the defendants, but of no use. The plaintiff has also sent Email of all
accounts in December 2015 to defendant No.2. The defendant No.3
kept himself out of picture, saying that defendant No.2 will handle the
account and finance. The plaintiff was following up with defendants but
it does not fruitful.
9. It is submitted that, in the April 2016, the plaintiff called
defendant no.3 asking for payment and then defendant No.2 called her
at their office and abused and disrespect her. In June 2016, defendant
No.2 refused to make payment and threatened to do so whatever, the
plaintiff wants to do. The plaintiff sent final payment demand notice via
email to both defendant Nos.2 and 3 on 1st February 2017 and 6th
March 2017, but of no use.
10. It is submitted that in spite of promise and in spite of repeated
demands by the plaintiff, the defendants failed to repay the amount.
Therefore, the plaintiff through her advocate issued demand notice on
01.08.2017, thereby called upon the defendant to pay amount of Rs.
47,42,607/ with interest. However, the defendants failed to repay the
amount. Hence, the suit.
11. Inspite of service, defendants failed to appear. Hence, suit
proceeded without their appearance vide order dated 17.08.2021.
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12. In support of its claim, the plaintiff has filed claim affidavit of
Jayshree at Exh.3. The plaintiff relied upon the documents filed along
with List at Exh.4 and 7 and additional list of documents at Exh.31 and
photocopy of Email dated 06.03.2017 and 31.03.2017 (Exh.35). The
plaintiff has filed evidence closing pursis at Exh.36.
13. Heard, the Ld. Advocate for the plaintiff. Perused the record.
14. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.47,42,607/
with further interest @ 18 % per
annum from the date of filing of the
suit till its full realization, as
claimed?
Partly Yes.
2. What Order and Decree? As per final order.
REASONS
As to point no.1:
15. The plaintiff examines Jayshree Yogesh Shah as PW1 at Exh.3.
She deposed as per the contents of the plaint averments; hence I do not
want to reproduce the same to avoid the repetition.
16. It is the case of the plaintiff that, Jayshree Shah is proprietor of
‘Jayshri Enterprises’, which was dealing in trading Iron and Steel. In the
year 2007, the defendant No.2 met to the plaintiff and offered business
to supply construction material at its sites. In the year 200910,
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Com. Suit No.343/2021 : 7 : Judgement
defendant Nos.2 and 3 started Construction Firm i.e., defendant No.1.
They asked plaintiff to supply construction material to defendant No.1.
Accordingly, as per request and demand of defendants, the plaintiff
started supplying construction material as per terms and conditions,
agreed therein. Defendants agreed to clear the dues within 30 days
from the bill date. However, since 201314 defendants started delay in
making payments. In spite of reminders, request and demands,
defendants failed to clear the outstanding dues. The plaintiff had issued
Legal Demand Notice to defendants, but of no use. Hence, the plaintiff
constrained to institute the suit for recovery of amount.
17. To substantiate its claim, the plaintiff relied on Tax Invoice No.
JE/02/1314 dated 13/04/2013 and Challan No. JE/02/1314 dated
04/04/2013 along with Tax Invoice of Sushma Steel Sales along with
Tax Invoice of Maa Chintpuri Iron and Steel (India) Pvt. Ltd (Exh.09
Colly); Tax Invoice No. JE/22/1314 dated 23/11/2013 and Challan
No. JE/22/1314 dated 12/11/2013 along with Tax Invoice of Sushma
Steel Sales along with Tax Invoice of Turbo Metals Pvt. Ltd (Exh.10
Colly); Tax Invoice No. JE/23/1314 dated 11/12/2013 and Challan
No. JE/23/1314 dated 04/12/2013 along with Tax Invoice of Sushma
Steel Sales along with Tax Invoice of K. C. Ferro and Rerolling Mills Pvt.
Ltd (Exh.11 Colly); Tax Invoice No. JE/24/1314 dated 05/02/2014
and Challan No. JE/24/1314 dated 25/01/2014 along with Tax
Invoice of VRU Steel along with Tax Invoice of Surya Ferrous (Exh.12
Colly); Tax Invoice No. JE/25/1314 dated 19/03/2014 and Challan
No. JE/25/1314 along with Tax Invoice of Mehta Steel Company
(Exh.13 Colly); Tax Invoice No. JE/26/1314 dated 21/03/2014 and
Challan No. JE/26/1314 dated 21/03/2014 along with Tax Invoice of
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Mehta Steel Company (Exh.14 Colly); Tax Invoice No. JE/01/1415
dated 16/04/2014 and Challan No. JE/02/1415 dated 10/04/2014
along with Tax Invoice of Sushma Steel Sales along with Tax Invoice of
Multi Steel Industries Exh.15 Colly); Tax Invoice No.JE/02/1415 dated
02/05/2014 and Challan No. JE/03/1415 dated 22/04/2014 along
with Tax Invoice of K. C. Ferro and Rolling Mills Pvt. Ltd (Exh.16
Colly); Tax Invoice No.JE/03/1415 dated 02/05/2014 and Challan
No.JE/03/1415 dated 26/04/2014 along with Tax Invoice of Sushma
Steel Sales along with Tax Invoice of Metro Ispat Pvt. Ltd (Exh.17
Colly); Tax Invoice No.JE/04/1415 dated 22/05/2014 and Challan No.
JE/04/1415 dated 10/05/2014 along with Tax Invoice of Sushma Steel
Sales along with Tax Invoice of Maa K. C. Ferro and Rolling Mills Pvt.
Ltd (Exh.18 Colly); Tax Invoice No.JE/05/1415 dated 12/06/2014 and
Challan No.JE/05/1415 dated 31/05/2014 along with Tax Invoice of
Sushma Steel Sales along with Tax Invoice of Thane Steels Pvt. Ltd
(Exh.19 Colly); Tax Invoice No. JE/06/1415 dated 19/06/2014 and
Challan No. JE/06/1415 dated 11/06/2014 along with Tax Invoice of
Sushma Steel Sales along with Tax Invoice of Multi Steel Pvt. Ltd
(Exh.20 Colly); Tax Invoice No.JE/07/1415 dated 14/01/2015 and
Challan No. JE/07/1415 dated 18/11/2014 along with Tax Invoice of
Mehta Steel Company (Exh.21 Colly). The plaintiff has also filed Sales
and Purchase ledger maintained by the office of the year 05/08/2007 to
18/11/2014 and 14/08/2007 to 18/11/2014 (Exh.22 Colly).
18. As per above said documents, the Tax invoices (Exh.9 to Exh.20)
are for the period 13.04.2013 to 19.06.2014 and the Tax Invoice at
Exh.21 is of dated 14.01.2015. As per Sales and Purchase Ledger
maintained by the plaintiff, it is up to the period 18th November 2014.
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The suit is lodged on 11.01.2018. As stated supra, the last Tax Invoice is
of 14.01.2015 vide Challan No.JE/071415 dated 18.11.2014. Upon
perusal of it, it is pertaining to amount of Rs.2,23,673/ only. After
going through the other invoices, they are of dated 13.04.2013,
23.11.2013, 11.12.2013, 05.02.2013, 19.03.2014, 21.03.2014,
16.04.2014, 02.05.2014, 27.04.2014, 22.05.2014, 22.06.2014 and
19.06.2014. Every invoice having a distinct cause of action. Therefore,
the suit filed on 11.01.2018 pertaining to these invoices (Exh.9 to
Exh.20) is beyond the period of limitation of three years. Nothing on
record to show that, defendants acknowledged in writing due of any
amount towards defendant No.1. Nothing on record to show that,
defendants make any part payments admitting their liability as alleged
and thus the claim pertaining to tax invoices (Exh.9 to Exh.20) are
within limitation. Mere issuance of demand notice does not give any
extension of period of limitation for recovery of suit. It is to be filed
within period of three years, from the date of invoice regarding due
amount. Hence, claim regarding invoices at Exh.9 to 20 are hopelessly
barred by limitation.
19. So far as, invoice at Exh.21, it is of dated 14.01.2015 and suit
filed on 11.01.2018 is only within limitation. Therefore, the plaintiff is
entitled for recovery of amount of Rs.2,23,673/ pertaining to invoice at
Exh.21. So far as rate of interest is concerned, I am of the view that
looking to the nature of business transaction and current bank rate of
interest, if the defendants are directed to pay the interest @ 9% p.a.,
then it will subserve the purpose. Thus, in view of my above
discussion, my answer to point No.1 is in partly affirmative.
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Com. Suit No.343/2021 : 10 : Judgement
As to Point No.2.
20. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.343 of 2021 is partly decreed with Costs.
2. Defendants do pay jointly and severally the amount of Rs.2,23,673/
with further interest @ 9% per annum from the date of its due till its
full realization.
3. Decree be drawn up accordingly.
4. Commercial Suit No.343 of 2021 disposed of accordingly.
(Virendra D. Kedar)
District & Addl. Sessions Judge,
City Civil & Sessions Court,
Date:.10.06.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 10.06.2024
Directly typed on : 10.06.2024
Signed on : 10.06.2024
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Com. Suit No.343/2021 : 11 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 10.06.2024 NAME OF STENOGRAPHER
TIME: 04.45 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
10.06.2024
JUDGMENT/ORDER signed by
P.O. on
10.06.2024
JUDGEMENT/ORDER uploaded on 10.06.2024
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