Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010009662019
Presented on : 24.01.2019
Registered on : 05.02.2019
Decided on : 12.09.2022
Duration : 03Y: 07M: 07D
EXHIBIT 11
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 233 OF 2019
M/s. Infinity HVAC Spares and Tools
Private Limited
having its registered office at Unit
No.7, Godbole Estate, Opp. Kasturba
Hospital, Sane Guruji Marg,
Mahalaxmi, Mumbai 400 011.
...Plaintiff
Versus
Mr. Nelson Dsouza, Proprietor of
M/s. Alpha Omega Enterprises
An adult aged about __years,
occupationbusiness, having address at
B1/103, Lunkad Queensland, Viman
Nagar, Pune411014.
Also having address at 106, Shiv Hari
Commercial Complex, Next to East
Court, Opp. Goga Space Viman Nagar,
Pune 411014.
And also having address at Shop
No.18, B Wing, Ground Floor Mittal
Court, Rasta Peth, Pune 411011.
...Defendant
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Exparte Judg.in Sum SU No.2332019
Appearance :
Ld. Advocate Mr. Mishra for plaintiff.
None for defendant (Exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 12.09.2022
Judgment
(Dictated and pronounced in open Court).
This is the summary suit filed under Rule 2 Order XXXVII of
Civil Procedure Code, 1908 (for short 'CPC') for recovery of an principal
amount of Rs.67,917/ ( sic Rs.92,917/) along with interest at the rate
of 24% p.a. from the date of decree till realization of entire amount.
Plaintiff’s case
2. Plaintiff claims to have supplied air conditioning spare parts
and tools (material) to the defendant from 14.02.2018 to 30.03.2018.
For which in all seven invoices of different amounts are issued of which
aggregate amount of Rs.92,917/ was due and outstanding from the
defendant.
3. Plaintiff contends that the said material was duly received and
consumed by the defendant. No dispute regarding its quality, quantity
or rates was ever raised by the defendant.
4. Inspite of the repeated demands defendant failed to pay the
said amount and therefore, plaintiff issued a legal notice dated
17.08.2018 to the defendant asking him to pay the outstanding amount.
Despite receipt of the notice, defendant did not pay the amount. Hence,
the present suit.
5. The writ of summons was duly served on the defendant,
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Exparte Judg.in Sum SU No.2332019
however he failed to appear and contest the suit. Sub rule (3) of Rule 2
of Order XXXVII of CPC provides that in default of defendant entering
his appearance, the allegations in the plaint shall be deemed to be
admitted and the plaintiff would be entitled for the decree. But still
decree cannot be passed without examining whether plaintiff has
adduced sufficient material to show his entitlement to get exparte
decree.
6. Plaintiff has filed his affidavit of examination in chief at
Exhibit08 and has reiterated his claim. Plaintiff vide application
Exhibit07 had prayed to this Court that as the original documents are
not traceable in his office, he be permitted to prove the said documents
by way of secondary evidence. My learned predecessor by order dated
15.12.2021, has allowed the said application. As such plaintiff is
permitted to rely upon the copies of the documents.
7. Plaintiff has filed copies of following documents
Sr.No. Exhibit
No.
Particulars
1. Exh.10
colly.
Xerox Copy of Tax Invoice Nos. PN1869/1718, PN
1898/1718, PN 1904/1718, PN 1945/1718, PN
1949/1718, PN 2120/1718 and PN 2167/1718.
2. Exh.11 Xerox Copy of Advocate's notice dated 17.08.2018.
3. Exh.12 Xerox Copy of Registered Post Receipts.
4. Exh.13 Xerox Copy of returned registered post packet and
postal track reports.
5. Exh.14 Xerox Copy of Resolution dated 24.12.2018.
6. Exh.15 Certification u/s. 65B.
8. Heard learned Advocate Mr. Mishra for the plaintiff. He
submits that an amount of Rs.25,000/ is paid by the defendant and
now amount of Rs.67,917/ is outstanding. Mr. Mishra has also
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Exparte Judg.in Sum SU No.2332019
tendered the chart at Exhibit10 clarifying the outstanding principal
amount, without interest.
9. On perusal of the documents, it can be gathered that
defendant has not paid the amount towards the aforesaid invoices. As
the defendant has admittedly paid part amount, plaintiff is entitled for
decree of sum of Rs.67,917/. Only plaintiff has claimed interest @
24% p.a. on the basis of note at the foot of invoice regarding interest on
delayed payment. Admittedly invoice is a unilateral document. There
is no agreed rate of interest. Hence claim of interest @ 24% p.a. is on
higher side. However considering the nature of transaction and the rate
of interest of Nationalised Banks, I find it fit to award interest @ 9%
p.a. from date of filing of suit till realization of entire amount. Hence, I
pass following order
ORDER
1) Summary Suit No.233 of 2019 is hereby partly decreed with
costs.
2) Defendant do pay an amount of Rs.67,917/(Rupees Sixty
Seven Thousand Nine Hundred and Seventeen Only) to the
plaintiff along with interest at the rate of 09% per
annum from the date of filing of the suit i.e. 24.01.2019 till its
full realization.
3) Decree be drawn up accordingly.
4) Plaintiff is entitled for refund of Court fees, as per rules.
Date 12.09.2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 12.09.2022
Transcribed on : 12.09.2022
Signed on : 13.09.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
14.09.2022 at 01.50 p.m. Ms. Harshada Hanumant Sawant
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
12.09.2022
JUDGMENT/ORDER signed by P. O. on 13.09.2022
JUDGMENT/ORDER uploaded on 14.09.2022
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