Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.344/2021 : 1 : Judgement
MHCC010004962018
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. 344 Of 2021
(OLD SUMMARY SUIT NO.548 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. M/s. Total Space Management Pvt. Ltd.
(TSMPL),
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.
Another office situated at: 111/S2, Office
building, Harihar Complex, Mankoli Naka,
Mankoli Dapoda Road, Bhiwandi0 Kalyan,
Thane421 302.
2. Mr. Udayan Shah
Age not known.
Director of M/s. Total Space Management
Pvt. Ltd. (TSMPL),
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Having office at: 310, Sai Infotech, R. B.
Mehta Marg, Patel Chawl, Ghatkopar East,
Mumbai – 400077.
Another office situated at: 111/S2, Office
building, Harihar Complex, Mankoli Naka,
Mankoli Dapoda Road, Bhiwandi Kalyan,
Thane421 302.
3. Mr. Kantilal Shah
Age not known
Director of M/s. Total Space Management
Pvt. Ltd, (TSMPL),
Having office at: 310, Sai Infotech, R. B.
Mehta Marg, Patel Chawl, Ghatkopar East,
Mumbai – 400077.
Another office situated at: 111/S2, Office
building, Harihar Complex, Mankoli Naka,
Mankoli Dapoda Road, Bhiwandi0 Kalyan,
Thane421 302. ... 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.52,31,114/ 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.548 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.
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Com. Suit No.344/2021 : 3 : Judgement
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. Ms. Bhumi Yogesh Shah is a
Constituted Attorney of the plaintiff. 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.
3. It is submitted that, in the year 2008, Smt. Vidhi Himanshi
Kachalia @ Vidhi Yogesh Shah 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 jointly started a construction firm i.e., defendant No.1. The
defendant No.1 was into the business of 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. They have demanded construction material supply from
plaintiff 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,
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Com. Suit No.344/2021 : 4 : Judgement
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' as well as, through her proprietary firm i.e.
“U. V. Corporation’. 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 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' Village Val, Bhiwandi,
against a trading / business of the plaintiff and pending payments dues
against the material supplied from the plaintiff's company. To gain
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Com. Suit No.344/2021 : 5 : Judgement
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.
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, 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 i.e., 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
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Com. Suit No.344/2021 : 6 : Judgement
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.
52,31,114/ with interest. However, the defendants failed to repay the
amount. Hence, the suit.
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.52,31,114/
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.
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Com. Suit No.344/2021 : 7 : Judgement
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.
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 her mother 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/16/1314 dated 15/05/2014 and Challan No. UV/16/1314 dated
06/05/2014 along with Tax Invoice of Sushma Steel Sales along with
Tax Invoice of Multi Steel Industries (Exh.10 Colly); Tax Invoice No.
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Com. Suit No.344/2021 : 8 : Judgement
UV/19/1415 dated 03/11/2014 and Challan No. UV/19/1415 dated
01/11/2014 along with Tax Invoice of Sushma Steel Sales along with
Tax Invoice of Multi Steel Industries (Exh.11 Colly); Tax Invoice No.
UV/21/1415 dated 15/01/2015 and Challan No. UV/21/1415 dated
03/01/2015 along with Tax Invoice of Chetan Iron Traders Pvt. Ltd
(Exh.12 Colly).
18. As per above said documents, the Tax Invoices (Exh.10 and
Exh.11) are for the period of 15.05.2014 and 03.11.2014 and the Tax
Invoice at Exh.12 is of dated 15.01.2015. As per Sales and Purchase
Ledger maintained by the plaintiff, it is for the period up to 15.12.2008
to 18.02.2015 and 15.12.2008 to 30.01.2015. The suit is lodged on
11.01.2018. As stated supra the last Tax Invoice is of 15.01.2015 vide
Challan No. UV/21/1415 dated 03.01.2015. Upon perusal of it, it is
pertaining to amount of Rs.2,69,493/ only. After going through the
invoice dated 15.5.2014, it is for the amount of Rs.2,83,013/ and the
invoice at Exh.11 is dated 03.11.2014 is for the amount of
Rs.5,47,729/. Both invoices having a distinct cause of action.
Therefore, the suit filed on 11.01.2018 pertaining to these invoices 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 & Exh.11 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. Hence, claim regarding Invoice at
Exh.10 and 11 Colly., hopelessly barred by limitation.
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Com. Suit No.344/2021 : 9 : Judgement
19. So far as, invoice at Exh.12 Colly., it is of dated 15.01.2015 and
suit filed on 11.01.2018 is only within limitation. Therefore, the
plaintiff is entitled to recover amount of Rs.2,69,493/, pertaining to
invoice at Exh.12 Colly. 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.
As to Point No.2.
20. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.344 of 2021 is partly decreed with Costs.
2. Defendants do pay jointly and severally the amount of Rs.2,69,493/
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.344 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.344/2021 : 10 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 10.06.2024 NAME OF STENOGRAPHER
TIME: 04.52 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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