Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Judgment in
SU 647 of 2018 .. 1.. (Exh. 14 )
MHCC010009532018
Lodged on :17/01/2018
Registered on :01/03/2018
Decided On :14/07/2022
Duration :04Y:5M;28D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO. 647 OF 2018
Ashok Pratapchand Jain. ]
Age 57 years. Indian Inhabitant, ]
Proprietor of M/s. Rishabh Metalist Corporation, ]
Carrying on business at Shop No.12, Ground Floor, ]
Plot No.93/115, Raut Estate, Sitaram Poddar Marg ]
1st Fanswadi, Charni Road, Mumbai. ] ....Plaintiff
V/s
Maaza Electric ]
Through it's Prop. Ram Patil, ]
R.S. No.4039, Near Mahadik Bunglow, ]
Shiroli (P), Kolhapur – 416 122(M.S.) ] ....Defendant
Appearance:
Adv. M.D.Mali, for the plaintiff.
Defendant Exparte.
SUIT FOR RECOVERY OF MONEY
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 14/07/2022.
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JUDGMENT
This is a suit for recovery of money.
Case of the plaintiff in nutshell is as under :
2. Plaintiff is a proprietor of M/s. Rishabh Metalist
Corporation and is carrying on business of sale and purchase of Copper
wire/strip, G1 Strips, Farthing Rod material and various other items of
stainless steel at above address mentioned in the title clause of plaint.
Defendant is a proprietorship firm and Mr. Ram Patil is the proprietor of
“Maaza Electric” and carrying on business at the above mentioned
address in the plaint.
3. It is the case of the plaintiff that pursuant to the oral order
placed by the defendant, the plaintiff has sold, supplied copper
wire/Strip, G1 Strip, Farthing Rod material from 06.04.2017
to17.07.2017 for an amount of Rs. 10,18,778/. The description of the
goods sold to defendant is as under:
Sr.
No.
Bill Date Bill No. Amount
1. 06.04.2017 1775 34,662/
2. 13.04.2017 1780 50,244/
3. 18.04.2017 1785 71,656/
4. 29.04.2017 1797 97,170/
5. 10.05.2017 1803 72,419/
6. 31.05.2017 1821 1,23,342/
7. 02.06.2017 1824 71,179/
8. 03.06.2017 1827 23,723/
9. 12.06.2017 1836 1,68,962/
10. 30.06.2017 1860 1,74,868/
11. 06.07.2017 001 64,388/
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12. 14.07.2017 017 58,198/
13 17.07.2017 022 7,965/
4. Plaintiff further contended that the defendant had duly
received the delivery of goods without raising any objection of any
nature whatsoever as regards quality, quantity and rates etc. The
plaintiff delivered the goods by transport service of 'Madhupuri
Roadlines'. The defendant had agreed to make payment of bills within
10 days on receiving goods and in default to pay interest at the rate of
24% p.m. Defendant made part payment from time to time of sum of
Rs. 9,70,125/ till 10.01.2018 by cheques/RTGS and balance of Rs.
48,653/ is due and payable by the defendant to the plaintiff.
Defendant failed and neglected to pay the due amount to the plaintiff
on time. Hence, on 16.11.2017 plaintiff issued demand notice calling
upon the defendant to pay the amount of Rs.72,673/, then due
together with interest. Notice was duly served upon the defendant. The
defendant thereafter made payment of Rs.24,000/, which has been
given credit in the account, but failed to pay the remaining dues.
Therefore, the suit has been filed by the plaintiff for recovery of
principal amount Rs.48,653/ and interest of Rs.26,342/ till the date of
suit, aggregating to Rs.74,995/ with further interest at the rate of 24%
p.a.
5. Writ of summons was served upon the defendant by RPAD
but the defendant failed to appear in the suit. Therefore, the suit
proceeded exparte against the defendant.
6. Heard advocate M.D.Mali for the plaintiff.
7. Following points arise for my determination, to which I
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record my findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether plaintiff proves that
principle amount of Rs.
48,653/ is due and outstanding
from the defendant to the
plaintiff?
Yes
2. Whether the plaintiff is entitled
to recover the above amount
from the defendant? Yes
3. Whether the plaintiff is entitled
to the interest on the above
amount? What shall be the rate
of interest?
Yes..
9% p.a.
4. What order? Suit is decreed.
REASONS
As to Point No. 1 to 4.:
8. In order to prove the suit claim, PW1 Pratapchand Jain has
adduced his oral evidence at Exh.6 in the form of affidavit in lieu of
examinationinchief. In the said evidence of the plaintiff, all documents
relied by the plaintiff are duly proved and are accordingly exhibited in
the evidence.
9. Exh.8 (colly) consists of office copies of 13 tax invoices
raised by the plaintiff against the sale of material to the defendant.
Plaintiff has produced corresponding transport receipts at Exh.9 (colly).
These documents establish the fact that the material mentioned in the
invoices at Exh.8 (colly) are received by the defendant.
10. Exh.10 is the ledger account of the plaintiff in respect of
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the defendant. It is accompanied with certificate (Exh.11) under
Section 65 (B) of the Indian Evidence Act. Therefore, this document is
duly admitted and proved in the evidence of the plaintiff. As per the
said statement, the total value of the material supplied to the defendant
vide invoices at Exh.8 (colly) is Rs.10,18,778/. The statement further
indicates the receipt from the defendant to the tune of Rs. 9,70,125/
and accordingly an amount of Rs.48,653/ is balance from the
defendant towards sale of material pursuant to invoice at Exh.8(Colly).
The entries in the statement (Exh.10) stand substantiated by the tax
invoices (Exh.8).
11. Plaintiff has produced demand notice dated 16.11.2017 at
Exh.12. By issuing said notice, the plaintiff raised demand of Rs.
72,653/ as the principal amount and Rs. 27,777/, as the interest. The
postal envelop annexed with the notice shows that the defendant
refused to accept the demand notice. The suit claim is for Rs.74,995/
which includes principal amount of Rs.48,653/ and amount of
Rs.26,342/ as interest calculated at the rate of 24% p,a, from the due
date of bill till 10.01.2018.
12. In the demand notice, demand was raised of Rs. 72,653/
as the principal amount. However, as per the pleadings in the plaint,
after issuance of demand notice, defendant made payment of Rs
24,000/ which is reflected in statement at Exh.10. Therefore, on the
basis of above documentary evidence adduced by the plaintiff, it can be
concluded that an amount of Rs.48,653/ is due and payable by the
defendant towards the sale of material against the invoices at Exh.8
(colly).
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13. Plaintiff has claimed aforesaid amount with the interest at
the rate of 24 % p.a. which is highly excessive. Tax invoices at
Exh.8(colly) provide that the interest at the rate 24% will be changed if
payment remained unpaid for more than a week after delivery.
However, the said rate of interest cannot be considered as the agreed
rate of interest between the parties, it being unilateral document.
14. The nature of the transaction is commercial. Therefore,
interest rate more than 6% p.a. can be awarded in terms of Section 34
of the Code of Civil Procedure, 1908. However, same cannot be at the
rate of 24 % p.a. as claimed by the plaintiff. Due date for the payment
of the due amount can be fixed as 01.08.2017. From the said date, if
defendant is ordered to pay interest at the rate of 9% it will meet the
ends of justice. Accordingly point Nos. 1 to 3 are answered in the
affirmative and following order is passed:
ORDER
1. Suit No. 647 of 2018 decreed with costs.
2. Defendant shall pay an amount of Rs.48,653/ to the plaintiff
with interest at 9% from 01.08.2017 till realization of the entire
amount.
3. Decree be drawn up accordingly.
(S.B. Pawar)
Judge,
Dated: 14/07/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 14.07.2022
Dictated on : 14.07.2022
Transcribed on : 16.07.2022
Checked & Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
19.07.2022 at 2.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 14.07.2022
Order signed by P.O. on 14.07.2022
order uploaded on 19.07.2022
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.. 8.. Ord.in Summary
Judgment No.1021
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