Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.321/2018
Received on : 16.01.2018
Registered on : 16.03.2018
Decided on : 04.03.2019
Duration : Y M D
01 01 20
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 321 OF 2018
CNR NO.: MHCC010008242018
M/s. D.M. Pakitwala ]
having office address at Jeevandeep CHS, ]
Baburao Parulekar Marg, Off. Bhavani Shankar Road, ]
Dadar (West), Mumbai – 400 016 ]
Through its Partner Rajendra Bharat Shah ] ...Plaintiff.
Versus
A.G.S. Rathna Stores (P) Limited ]
Having registered office address at ]
“SHIVA COMPLEX”, 91, Pondy Bazar, ]
TNagar, Chennai : 600017, Tamil Nadu. ] ...Defendant
Appearances:
Advocate Mr. Ranawat for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.9)
DATED : 4th MARCH, 2019.
[ J U D G M E N T ]
Allegations of plaintiff in short are as under :
1. Plaintiff sold, supplied and delivered goods of Rs.25,271/ to
defendant. Defendant accepted the goods without any grievances and
never raised dispute with respect to quality, quantity or whatsover.
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Defendant failed to make payment for goods supplied. Therefore,
plaintiff has issued Demand Notice calling upon defendant to pay
outstanding due of Rs. 38,547/ and defendant failed to pay
outstanding amount. Therefore, plaintiff filed the present suit.
2. Defendant failed to appear in the suit, therefore, suit has
proceeded Exparte against defendant.
4. Heard the Ld. Advocate for the plaintiff.
5. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.39,447/ from
defendant along with interest @
21% p.a. on the principal sum of
Rs.25,271/ from the date of filing of
the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
6. Plaintiff has filed evidence in the form of affidavit of Bharat Hirji
Shah (P.W.1), the partner of the plaintiff below (Exh.6). Plaintiff relied
upon the following documents as documentary evidence which are as
under :
Sr.
No.
Exhibits Date Particulars
1. Exh.8 06.05.2015 Tax Invoice bearing No.00081
2. Exh.9 06.05.2015 Transport Challan
3. Exh.10 16.10.2017 Legal Notice
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4. Exh.11 16.10.2017 Counter Folio “Colly”.
5. Exh.12 Postal Acknowledgment Cards.
AS TO POINT NOS. 1 AND 2:
7. Bharat Hirji Shah (P.W.1), the partner of the plaintiff has stated
that the defendants on 06.05.2015 and 09.05.2015 have placed order
of the said Goods to plaintiffs. Plaintiffs dispatched the said goods to
deliver the defendants address. Plaintiffs have sold, supplied and
delivered goods vide their tax invoices bearing 000 081 dated
06.05.2015 for the sum of Rs.25,271/ inclusive of tax as applicable
then. He has further stated that said goods were delivered through
transport namely “SHREEJI TRANSPORT SERVICES (P) Limited” on
06.05.2015 vide L.R.No.GC11031502098. He has further stated that on
instructions of the defendant, the goods were delivered through
“SHREEJI TRANSPORT SERVICES (P) Limited” at the address. He has
further stated that upon delivery of the goods, defendant have accepted
the said goods without any grievances and have never raised dispute
with respect to quality, quantity or whatsoever. He has further stated
that the defendants were abided by the conditions imprinted on the
invoices as well as agreed on the contractual rate of interest on delay
payment. He has further stated that under the invoices it is clearly
mentioned, on default of payment, the defendant shall pay 21% interest
and the same has been conceded to.
8. Bharat Hirji Shah (P.W.1) further stated that on plaintiffs
instructions, on 20.10.2017, the plaintiffs Advocate sent demand notice
to the defendants whereby call upon to pay the amount of Rs.39,447/
within 10 days from the receipt of the notice. He has further stated that
on instructions his Advocate drafted and sent the Notice to the
defendant. He has further stated that defendants have accepted the
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demand notice on or 23.10.2017 but defendants have failed to reply the
same or make the payment which is due and payable under the invoice.
He has further stated that the plaintiffs Advocate received the
acknowledgment card which indicates that the demand Notice has been
served upon defendants. It is pertinent to note that defendants have
admitted the demand therefore the defendants have not reply to the
said notice till date. He has further stated that the defendant and or his
staff have accepted the Notice and signed on Acknowledgement Card.
9. Bharat Hirji Shah (P.W.1) further stated that the defendant
failed to reply to the Notice. He has further stated that it is deemed
that the defendants have accepted the claim of the plaintiffs. He has
further stated that the defendant owes the sum of Rs.25,271/ payable
under the invoices and interest @ 21% to the sum of Rs.14,176/ from
06.06.2015 till filing of the suit which is aggregating to the sum of
Rs.39,447/ and further interest @ 21% from filing of the suit till
realization of the amount which is clearly and explicitly mention in the
particulars of claim annexed to the plaint. He has further stated that
after filing of the Suit and upon receiving the Writ of Summons send
through the Hon'ble Court to the defendant, the defendant sent a
Demand Draft on 08.05.2018 of the Principal amount to the plaintiff.
He has further stated that the defendant is liable to pay the interest @
21% on the principal amount and the same is outstanding to the sum of
Rs.14,176/ and further interest @ 21% from filing of the suit till
realization of the amount
10. Plaintiff has also filed all the corroborating documents which are
Tax Invoice, Transport Challan and Legal Notice on record as
documentary evidence. Defendant has failed to challenge all the
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averments in the plaint, oral and documentary evidence lead by
plaintiff. Due to all these circumstances, plaintiff has proved that he was
entitled to get sum of Rs.39,447/ from the defendant.
11. Plaintiff has specifically stated that defendant has paid the
principal amount by sending Demand Draft as stated above, and
therefore, outstanding amount remained is of only interest of Rs.
14,176/. As the principal amount is paid, there is no reason for
passing order of interest on principal amount. Hence, answer point No.1
partly in the affirmative and pass following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant is directed to pay amount of Rs.14,176/ to plaintiff.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 04.03.2019. City Civil Court,
Gr. Bombay.
Dictated on : 04.03.2019
Transcribed on : 04.03.2019
Signed on : 04.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.03.2019 At 2:56 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.09)
Date of pronouncement of
Judgment/Order
04.03.2019
Judgment/Order signed by P.O. on 04.03.2019
Judgment/Order uploaded on 11.03.2019
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