Final Order 4

Order Details: Copy of Judgment
Pdf Text: CS No. 397/ 2023
Haren Vs. Bishmbhar
Judgment (Exh.24) 1 of 7
Suit Lodged on : 15.01.2022
Suit Admitted on : 08.08.2023
Suit Decided on : 20.03.2026
Duration : 04 Years, 02 Months, 05 Days
MHCC010010382022
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
Commercial Suit No. 397 / 2023
Exhibit No. 24
Haren Bhagwandas Somaiya
Aged 59 years, Occupation : Business,
Hindu, Indian Inhabitant of Mumbai,
Proprietor of M/s. H. B. Traders,
having his address at Office No. 206/208,
2nd floor, Dwarkesh Market, 33/37,
Dr. Atmaram Merchant Road,
Bhuleshwar, Mumbai 400 002. … Plaintiff
V/s.
Bishmbhar Nath Varma
S/o, Vipin Bihari Varma, Age 55 yrs,
Occupation : Business, Hindu,
Indian Inhabitant of Patna, The
Proprietor of Sambhavi Jewellers,
having address at P. C. Colony,
Kankad Baug, Patna 800 020.
And
R/at C/O. Shri Vipin Bihari Varma,
Kazipur, Road No.4, Patna 800 004. … Defendant
Appearances :
Plaintiff : Adv. Mr. Ashish Gupta
Defendant : Adv. Mr. M. S. Singh
Adv. Mr. Vimal Tiwari
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Haren Vs. Bishmbhar
Judgment (Exh.24) 2 of 7
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 20.03.2026
***************************************************************
JUDGMENT
(Delivered on this 20th day of March, 2026)
Suit for recovery of amount of Rs. 4,61,184/- with interest.
1. Plaintiff sued defendant to recover amount of Rs.4,61,184/-
with interest @ 18% per annum from the date of suit till realization of
entire amount.
Facts giving rise to dispute are as under :
2. Plaintiff is a proprietor of M/s. H. B. Traders. Plaintiff does
business of wholesale and retail golden, silver ornaments. One
Mr.Rakeshkumar Baranwal had introduced defendant to plaintiff at
Mumbai. Defendant purchased silver ornaments worth Rs.4,61,184/-
under Tax Invoice / Bill No. 1971 Dt. 01.01.2014. Despite defendant
received ornaments but did not pay the amount. After great persuasion,
defendant issued cheque Dt.20.03.2018 bearing no. 875884 of
Rs.4,61,184/-. That cheque was dishonoured on 22.03.2018. Plaintiff
issued legal / demand notice on 23.03.2018.
3. As defendant failed to pay the amount, plaintiff after due
compliance of Section 12-A of the Commercial Courts Act filed this suit.
Defendant taken out one Notice of Motion No. 606/2024 for
condonation of delay. That was allowed by the then Presiding Officer on
09.08.2024 on cost of Rs. 5,000/-. Defendant moved another Notice of
Motion No. 5442/2024 with a prayer to waive the cost and to have
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Haren Vs. Bishmbhar
Judgment (Exh.24) 3 of 7
Written Statement of defendant on record. After hearing both parties,
the then Presiding Officer rejected said Notice of Motion on 19.12.2024.
Consequently on 25.09.2025 no written statement order was passed in
the suit.
4. Plaintiff Mr. Haren B. Somaiya filed his evidence affidavit vide
Exh.14. Plaintiff relied on certified copy of evidence in Complaint No.
992/2018, copy of invoice Dt. 01.01.2014, copy of dishonoured cheque,
dishonoured memo and notice Dt. 23.03.2018.
5. Plaintiff filed written notes of argument vide Exh.22 and
defendant vide Exh.23. Following points arise for my determination and
I have recorded my findings for the reasons discussed as under :-
Sr.
No.
Points Findings
1. Is it proved that plaintiff sold silver
ornaments worth Rs.4,61,184/- to
defendant and he failed to pay the
amount?
In the Affirmative.
2. Is plaintiff entitled to recover any
amount? If yes, what would be that
amount and rate of interest?
Plaintiff is entitled to
recover Rs.4,61,184 /-
from defendant with
9% interest per annum
from date of suit till
realization of entire
amount.
3. What order ? Suit is decreed with
cost.
R E A S O N S
As to point nos 1 to 3
6. I have gone through oral evidence of Mr. Haren Somaiya,
which is nothing but replica of plaint. He deposed that defendant
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Haren Vs. Bishmbhar
Judgment (Exh.24) 4 of 7
though received silver ornaments worth Rs.4,61,184/- but failed to pay
the amount. This witness deposed that cheque issued by defendant for
above referred amount was dishonoured and accordingly case under
Section 138 of Negotiable Instrument Act, 1881 (NI Act, for short) Act
was filed against defendant.
7. Plaintiff relied on invoice Exh.17 Dt. 01.01.2014. There is an
acknowledgment by defendant on said invoice that ornaments were
received. Its a clear proof of sale and delivery. Copy of cheque Exh.18
along with dishonoured memo Exh.19 are the documents, which
indicate that there was liability on defendant, which prompted him to
issue said cheque in favour of plaintiff. Said cheque was dishonoured
for want of funds. Separate proceeding under Section 138 of NI Act is
filed against defendant. However, it is not known whether that
proceeding is pending or disposed of.
8. This being a civil proceeding, standard of proof is
preponderance of probabilities. Issuance of cheque by defendant and its
dishonour lead to indicate that whatever stand is taken by plaintiff is
probable and acceptable. Defendant failed to file written statement and
not challenged oral and documentary evidence of plaintiff. Defendant
not disputed facts by filing written statement and not rebutted plaintiff’s
evidence by stepping into witness box.
9. Plaintiff proved notice Dt. 23.03.2018 by which defendant was
called upon to pay the amount with interest. There is no reason to
disbelieve oral and documentary evidence of plaintiff. For the reasons
best known to defendant, no steps were taken to deposit the cost or to
get no written statement order set aside. Considering date of dishonour
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Haren Vs. Bishmbhar
Judgment (Exh.24) 5 of 7
of cheque, suit should have been filed within three years. However, due
to pandemic of COVID-19, limitation for all legal purposes were relaxed
from 15.03.2020 to 28.02.2022 by order of Hon’ble Apex Court in Suo
Motu Writ Petition No. 3/2020. Thus, suit which is filed on 15.01.2022
is filed within limitation.
10. Thus, plaintiff has successfully proved a fact that he is entitled
to get Rs.4,61,184/- from defendant. Invoice doesn’t speak anything
about rate of interest in case of default in making payment within time.
Therefore, plaintiff is not entitled to 18% interest per annum.
Considering nature of suit and transaction involved in, plaintiff is
entitled to get 9% interest per annum on the above referred amount.
11. Hence, I answer point no. 1 in affirmative, point no. 2 as
“Plaintiff is entitled to recover Rs.4,61,184/- from defendant with 9%
interest per annum from date of suit till realization of entire amount.”
and in answer to point no. 3, following order is passed :
ORDER
1. Commercial Suit No. 397/2023 is decreed with costs.
2. Plaintiff is entitled to recover Rs.4,61,184/- (Rs. Four Lakhs
Sixty One Thousand One Hundred and Eighty Four Only)
from defendant with 9% interest per annum from date of suit
till realization of entire amount.
3. Defendant, within three months from date of this Judgment,
shall pay amount as mentioned in clause no. 2 of this
Judgment to plaintiff with interest.
4. Decree be drawn up accordingly.
5. Judgment is dictated and pronounced in open Court.
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Judgment (Exh.24) 6 of 7
6. After compliance and period of Appeal, Sheristedar and AS to
consign Record of the suit, to Record Room.
Mumbai
Dated : 20.03.2026
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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Haren Vs. Bishmbhar
Judgment (Exh.24) 7 of 7
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20.03.2026 4.55 p.m. Prachi Y. Potdar
Stenographer - Grade I
Uploaded by
Pramod V. Shejval
(Clerk - Typist)
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
20.03.2026
Judgment/order signed by P.O on 20.03.2026
Judgment/order uploaded on 20.03.2026
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