Final Order 2

Order Details: Other
Pdf Text: MHCC010002252023 Presented on 06/01/2023
Registered on 06/01/2023
Decided on 15/07/2024
Duration 01Y: 06M: 09D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 9 OF 2023
IN
SUMMARY SUIT NO. 221 of 2018
M/s. Hoo Agro Process, a proprietary firm ]
Through its proprietor Mr. Rizwan Khan ]
having its office at Gala No.6, Willson ]
Shopping Centre, Sonapur, Bhandup West, ]
Mumbai – 400078. ]...Plaintiff
Vs.
1. M/s. R.B. Dande and Associates ]
2. Mr. Ramesh B. Dande ]
Both having address at Shop No. D-2/1, ]
Gharonda, Sector -9, Ghansoli, ]
Navi Mumbai 400 701. ]...Defendants
Appearance:
Ld. Advocate Deepak M. Sharma a/w. Adv. Shrushti Vishwakarma for
plaintiff.
Defendant and his advocate are absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 15/07/2024.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 22/11/2022. Defendants failed to file reply to the
summons for judgment. Therefore, order was passed on 14/07/2023 to
proceed summons for judgment without reply against the defendants.
02] As per the plaintiff, Mr. Rizwan Ahmed Khan is a sole
proprietor of M/s. Hoo Agro Process, a proprietary firm and he is
engaged in buying and selling M. S. Scrap, S. S. Scrap, Reconditioning
machinery. Defendant No.1 is a partnership firm and defendant No. 2 is
partner of it. Defendants are engaged in purchase and sale of Bulk scrap
materials and also in other services of High Rich Demolition, Driving
work, all type of core drilling, concrete sawing, rock sawing, concrete
crushing etc. Defendants came to know from common friend Mr.
Shafiullah Choudhary that plaintiff is in need of bulk scrap material to
the tune of Rs. 40,00,000/-. Therefore, defendants approached to
plaintiff to sale bulk material to the tune of Rs. 70,00,000/- however,
plaintiff was in need of bulk scrap material to the tune of
Rs. 40,00,000/- only. Defendants asked to make advance payment of
Rs. 20,00,000/- and thereafter, defendants will supply scrap materials
immediately and remaining scrap material of Rs. 20,00,000/- would be
supplied later on. It was agreed that thereafter, plaintiff will pay balance
amount of Rs.20,00,000/-. Accordingly, plaintiff made payment of an
amount of Rs.5,00,000/- on 19/07/2016, Rs.11,50,000/- on
17/01/2017 and Rs. 3,00,000/- on 22/02/2017 total amounting to
Rs. 19,50,000/- through RTGS out of Rs.40,00,000/-. However,
defendants despite of receipt of said amount and repeated request failed
to supply scrap material of said amount as well as failed to return said
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amount. Therefore, issued notice dated 08/07/2017 and called upon
defendants to repay said amount with interest at the rate of 18% p.a.
from the date of receipt of said amount. Defendants replied to said
notice on 12/09/2017 and accepted receipt of amount of
Rs. 19,50,000/- from plaintiff. Plaintiff filed rejoinder to said reply on
14/11/2017 and denied false contention in reply of defendants. Further,
defendants failed to supply goods or to return said amount and it shows
intention of defendants was to cheat the plaintiff and cause wrongful
loss to the plaintiff. Thereafter, plaintiff has again issued notice dated
22/11/2017 and called upon to repay an amount of Rs. 19,50,000/-
with interest at the rate of 18% p.a. Defendants have received said
notice however, neither paid outstanding amount nor replied to the said
notice. Therefore, plaintiff is entitled for an amount of Rs. 19,50,000/-
towards principal and Rs. 3,83,819/- towards interest total amounting
to Rs. 23,33,819/- alongwith future interest at the rate of 18% p.a.
Hence, summons for judgment may be allowed.
03] Defendants though appeared in the matter failed to file
their reply to the summons for judgment. Therefore, summons for
judgment is proceeded without their reply.
04] It is argued on behalf of plaintiff that he had advanced an
amount of Rs. 19,50,000/- to purchase scrap materials from defendants
however, defendants failed to supply scrap materials or to return said
amount. Plaintiff has filed documents to support his contentions.
Defendants failed to appear therefore, suit was proceeded ex-parte vide
order dated 13/08/2018. Further, he has filed claim affidavit and even
documents are exhibited. Thereafter, defendants was allowed to appear
in view of order passed on Notice of Motion No.557/2019 dated
12/08/2022. Thereafter, summons for judgment was taken out
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however, defendants failed to file reply to it. Therefore, it is deemed
that defendants have admitted the claim of plaintiff. Therefore, plaintiff
is entitled for decree.
05] Perused summons for judgment, plaint, documents filed on
record vide list Exh. 4 by the plaintiff. Heard counsel for plaintiff. It
appears from record that as defendants failed to appear matter was
ordered to proceed ex-parte against them on 13/08/2018. Thereafter,
plaintiff filed his evidence on affidavit at Exh. 4 and relied and referred
on documents at Exh.4 to 12. Thereafter, in view of order passed in
Notice of Motion No. 557/2019, dated 12/08/2022 defendants were
allowed to appear in the matter. On 22/11/2022 plaintiff has taken out
this Summons for Judgment and though copy of it was served,
defendants failed to file reply. Therefore, summons for judgment was
proceeded with reply of defendants.
06] As per the contention of the plaintiff, he had paid an
amount of Rs.5,00,000/- on 19/07/2016, Rs.11,50,000/- on
17/01/2017 and Rs.3,00,000/- on 22/02/2017 total amounting to
Rs. 19,50,000/- through RTGS out of Rs. 40,00,000/-. Plaintiff has filed
counter folios, letter from State Bank of India dated 09/11/2018 and
bank account statement at Exh. 4 and 5 colly. On perusing said
documents, it appears that plaintiff has paid amount of Rs.19,50,000/-
to defendants and same has been credited to the account of defendants.
It is the contention of plaintiff that in spite of receiving amount by the
defendants, they failed to supply scrap. Even, in spite of repeated
request neither supplied scrap nor repaid said amount. Therefore,
plaintiff had issued notice dated 08/07/2017 to defendants by
registered posts and called upon to repay an amount of Rs. 19,50,000/-
with interest. Plaintiff has filed office copy of said notice alongwith
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postal receipts and acknowledgment receipts at Exh.6 colly to show that
said notice is received by the defendants. Defendants have replied to
said notice on 12/09/2017 and it is filed on record at Exh.7. On
perusing said reply, it appears that though, initially defendants have
denied the contentions of the plaintiff's notice, however, in para 3 on
page 4 of said reply, it is contended that one Mr. Samsulla M. Rafiq
Khan had entered in MOU with him on 15/06/2016 and further, made
payment on various dates to plaintiff amounting Rs.54,08,536/-through
Mr. Samsulla M. Rafiq Khan. Further, in para 4, page 5 of said reply, it is
admitted that plaintiff has made payment of Rs. 19,50,000/- through
RTGS to defendants as per instructions of Mr. Samsulla M. Rafiq Khan,
who was supposed to deliver scrap material to the plaintiff. Further,
though, it is contented that Mr. Samsulla M. Rafiq Khan had already
delivered scrap to the plaintiff however, defendants have not mentioned
date and quantity. Moreover, plaintiff has filed rejoinder reply on
14/11/2017 at Exh. 8 colly by registered post to reply of defendants
and denied adverse contentions in the said reply and it is received by
the defendants. It is pertinent to note that defendants have not replied
to it.
07] Thus, it appears that as defendants failed to supply scrap
material or refund an outstanding amount to plaintiff. Therefore,
plaintiff issued notice dated 22/11/2017 by registered post and same is
received by the defendants and it is filed on record vide Exh. 9 colly. As
discussed above, though defendants had appeared in the matter failed
to file reply to summons for judgment. Even, defendants failed to bring
sufficient material on record that scrap material is provided to plaintiff
or an amount of Rs.54,08,536/- is paid to plaintiff as contended in
reply. On the contrary, from documentary evidence on record, it appears
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that plaintiff has paid an amount of Rs. 19,50,000/- through RTGS to
defendants. Admittedly, there is no written agreement between the
plaintiff and defendants. It is settled law that a written contract or a
contract in writing need not always be a contract signed by both parties
and may consists of exchange of correspondence of a letter or letters
written by one and assented to by the promissory without signature or
even of a memorandum or printed document not signed by either party.
As discussed above, there is no written contract however, there is
exchange of correspondence. In the present case defendants vide reply
at Exh. 7 has admitted receipt of money. As discussed above, there is
nothing on record to show that defendants or Mr. Samsulla M. Rafiq
Khan has supplied scrap to the plaintiff. Further, as defendants failed to
contest the summons for judgment. Therefore, it appears that plaintiff
has proved his contentions on the basis of the documents filed on
record. Even otherwise, evidence of the plaintiff has remained
unchallenged and it is deemed to be admitted. Further, '
as per Order
37, Rule 6(a) if defendant has not applied for leave to defend, the
plaintiff shall be entitled for judgment forthwith.' The defendant No. 1
is partnership firm and defendant No. 2 being partner of it are jointly
and severally liable to pay outstanding amount of Rs.19,50,000/-.
Therefore, I am of the view that plaintiff is entitled for principal
amount.
08] So far interest is concerned, plaintiff has claimed 18% p.a.
interest on the outstanding amount. It is pertinent to note that the
plaintiff has not brought on record any document to show that rate of
interest was agreed as 18% p.a. The interest claimed by the plaintiff is
excess than the interest rate of Nationalized Bank. Therefore, I am of
the view that in view of Section 34 of C.P.C., it would be proper to
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grant 7% p.a. interest on the principal amount from the date of filing
the suit till realization of the said amount. Hence, I proceed to pass
following order:
ORDER
1) Summons for judgment No.09/2023 in Summary Suit
No. 221/2018 is partly allowed with costs.
2] Summary Suit No. 221/2018 is partly decreed as follows:
(a) The defendants shall jointly and severally to pay the plaintiff
an amount of Rs. 19,50,000/- (Rupees Ninteen Lakhs Fifty
Thousands only).
3] The plaintiff is entitled to simple interest on the amount of
Rs. 19,50,000/- at the rate of 7% per annum from 20/01/2018
i.e. the date of filing the suit till its full realization.
4] The plaintiff may be entitled to get refund of the court-fees paid
by him, if any provided for in rules.
5] Decree be drawn accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 15/07/2024 Court Room No.81
Dictated on : 15/07/2024
Corrected & signed on :15/07/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
15/07/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 15/07/2024
JUDGMENT/ORDER signed by P. O. on 15/07/2024
JUDGMENT/ORDER uploaded on 15/07/2024
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