Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.345/2021 : 1 : Judgement
MHCC010004912018
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. 345 Of 2021
(OLD SUMMARY SUIT NO.547 OF 2018)
Exhibit22
Vidhi Himanshu Kachalia @ Vidhi Yogesh
Shah
Age: 23 Years,
A Proprietor of U. V. Corporation,
A registered company under the Company
Act 1956, Having its office at: 2/8, Kashi
Darshan, Hansoti Lane, Ghatkopar West,
Mumbai – 400086.
Through Bhumi Yogesh Shah Constituted
Attorney of Vidhi Yogesh Shah. ... 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.
3. Mr. Kantilal Shah
Age not known,
Director of KUD Realtors Pvt. Ltd. (KUD),
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Com. Suit No.345/2021 : 2 : Judgement
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
1. The plaintiff has filed the present suit for recovery of sum of
Rs.15,11,031/ 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.547 of 2018 for
recovery of above said amount against the defendant. 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 'U. V. Corporation' registered
company under the Company Act 1956. Bhumi Yogesh Shah is a
Constituted Attorney of the plaintiff, having personal knowledge about
all the transactions as she was helping to the plaintiff in their business.
The plaintiff is initially handling the business of her mother's
Proprietary Firm viz. 'Jayshri Enterprises (JE)' registered in the year
2007. It is dealing in trading of Iron & Steel in and around Mumbai.
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Com. Suit No.345/2021 : 3 : Judgement
3. It is submitted that, in the year 2008, the plaintiff has started her
own proprietary firm viz. 'U. V. Corporation (UVC)' and has the business
of trading in Iron and steel. 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 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 Enterprise', where he
was the partner.
4. It is further submitted that, in the year 200910, defendant Nos.2
& 3 have jointed started a construction firm i.e. defendant No.1. The
defendant No.1 was into construction of commercial offices and
residential buildings in and around Bhiwandi. Defendant Nos.2 and 3
being directors of defendant No.1 handling day to days affairs of it and
have demanded construction material supply for defendant No.1.
Thereafter, the plaintiff started business of supplying construction
material to defendant No.1. After few months, defendant Nos.2 on
behalf of defendant No.1 offered job to the plaintiff, as a manager. The
plaintiff accepted said offer.
5. It is also submitted that, in the year 200910, defendant Nos. 2
and 3 registered Partnership Company 'KUD Realtors Pvt. Ltd., (KUD)'
with the same business of construction and the plaintiff has started
supplying material to 'KUD'. The payment terms for bill settlement were
of 30 days from the date of bill. The business relations were continued
on the same terms over the period of seven years. Since the year from
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Com. Suit No.345/2021 : 4 : Judgement
201314, defendant No.2 and 3 were delaying payment by 60 days to
90 days, 120 days and so on. From the year 201415, payment terms
were going worse and every time defendants giving reason of financial
crisis and request to consider their family relation and assured to make
payment very shortly.
6. Due to assurance by defendant Nos.2 and 3 on behalf of
defendant no.1, the plaintiff was supplying material to defendant No.1,
assuming that the 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 their another project 'KUD Business Avenue' VillageVal, Bhiwandi,
against a trading / business of the plaintiff and pending payments dues
against the material supplied from the plaintiff's company. To gain
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 gain further confidence, they cleared plaintiff's two bills in the
month of December 2014.
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Com. Suit No.345/2021 : 5 : Judgement
8. It is further submitted that the Income Tax Returns of the
company is showing as outstanding dues for the year 2015. In the
month of February 2015, the plaintiff 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 No.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 Email 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 does not
fruitful.
9. It is submitted that, in April 2016, Jayshree Shah, the mother of
Vidhi Shah called defendant No.3 asking for payment and then
defendant No.2 called Jayshree Shah 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 defendants to repay amount of Rs.
15,11,031/ with interest. However, the defendants failed to repay the
amount. Hence, the suit.
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Com. Suit No.345/2021 : 6 : Judgement
11. Inspite of service, the defendants failed to appear. Hence, suit
proceeded without appearance of the defendants vide order dated
21.08.2021.
12. In support of her claim, the plaintiff has filed claim affidavit of
PW1 Bhumi Yogesh Shah (Exh.3). The plaintiff relied upon the
documents filed along with List (Exh.4) and additional documents
(Exh.7). The plaintiff has filed evidence closing pursis at Exh.21.
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.15,11,031/
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. PW1 Bhumi, being Power of Attorney, deposed as per the
contents of the plaint averments; hence I do not want to reproduce the
same to avoid the repetition. The plaintiff has filed Copy of Power of
Attorney dated 09.01.2018 (Exh.8), thereby she be permitted to depose
on behalf of the plaintiff being aware of the facts of the case.
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Com. Suit No.345/2021 : 7 : Judgement
16. It is the case of the plaintiff that, the plaintiff is a proprietor of
'U. V. Corporation', which was dealing in trading Iron and Steel. In the
year 2007, the defendant No.2 met to the plaintiff and offered business
of supply construction material at its sites. In the year 2008, defendant
Nos.2 and 3 started construction firm i.e. defendant No.1. They asked to
the plaintiff to supply construction material to defendant No.1.
Accordingly, as per request and demand of defendants, the plaintiff
stared supplying construction material as per terms and conditions
agreed therein. Defendants agree to clear 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.
UV/13/1314 dated 26/02/2014 and Challan No. UV/13/1314 dated
18/02/2014 along with Tax Invoice of Sushma Steel Sales along with K.
C. Ferro Rerolling Mills Pvt. Ltd (Exh.10 Colly); Tax Invoice No.
UV/20/1415 dated 03/11/2014 and Challan No. UV/20/1415 dated
01/11/2014 along with Tax Invoice of Sushma Steel Sales along with
Tax Invoice of K. C. Ferro Rerolling Mills Pvt. Ltd (Exh.11 Colly); Tax
Invoice No. UV/24/1415 dated 15/01/2015 (Exh.12).
18. As per above said documents, the Tax Invoice (Exh.10) is of
dated 26.02.2014 for Rs.4,35,406/, the Tax Invoice (Exh.11) is of
Rs.5,45,394/ and the Tax Invoice (Exh.12) is of dated 18.02.2015 of
Rs.4,12,067/. As per Sales and Purchase Ledger maintained by the
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Com. Suit No.345/2021 : 8 : Judgement
plaintiff, it is up to 31st March 2015. The suit is lodged on 11.01.2018.
After going through record, the invoice dated 26.02.2014 having
distinct cause of action. Tax Invoices of 14.01.2015 vide Challan No.
UV/20/1415 dated 27.11.2014 of Rs.5,45,394/ and Tax Invoice of
18.02.2015 vide Challan No. UV/24/1415 dated 18.01.2015 of
Rs.4,12,067/ are within limitation only. Therefore, the suit filed on
11.01.2018 regarding invoice dated 26.02.2014 is beyond the period of
limitation of three year. Nothing on record to show that, the defendants
acknowledged in writing due of any amount towards defendant No.1.
Nothing on record to show that, defendants make any part payment
admitting their liability as alleged and thus the claim pertaining to
Exh.10 is within limitation. Mere issuance of demand notice does not
give any extension of period limitation for recovery of suit. It is to be
filed within period of three years, from the date of invoice. Hence, claim
regarding Invoice at Exh.10 Colly, hopelessly barred by limitation.
19. So far as, invoice dated 14.01.2015 (Exh.11) and invoice dated
18.02.2015 (Exh.12) and suit filed on 11.01.2018 are within limitation.
Therefore, the plaintiff is entitled to recover only amount of
Rs.9,57,461/, pertaining to invoices at Exh.11 and Exh.12. 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
defendant is directed to pay the interest @ 9% p.a., then it will sub
serve the purpose. Thus, in view of my above discussion, I answer to
point No.1 in partly affirmative.
As to Point No.2.
20. In view of my above discussion, I pass the following order:
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Com. Suit No.345/2021 : 9 : Judgement
ORDER
1. Commercial Suit No.345 of 2021 is partly decreed with Costs.
2. Defendants do pay jointly and severally the amount of Rs.9,57,461/
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.345 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.345/2021 : 10 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 10.06.2024 NAME OF STENOGRAPHER
TIME: 5.55 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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