Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010013892018 Presented on 25/01/2018
Registered on 17/02/2018
Decided on 19/09/2024
Duration 06Y: 07M: 25D
Exhibit 19
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 223 OF 2018
M/s. Assured Advertising & Media Pvt. Ltd., ]
A private Limited Company, duly registered ]
under the Indian Companies Act, 1956 ]
having their address at 314, Parvati Industrial ]
Estate 314, Parvati Industrial Estate, New Sun Mill ]
Compound, Lower Parel (West), Mumbai-400 013 ]
Through its Authorized Representative ]
Mr. Asif Ali Rana,Collection Manger ]
Aged 40, Occupation Service. ]...Plaintiff
V/s.
1. Signapurkar Leather House Pvt. Ltd. ]
A Company registered under the provisions of ]
Indian Companies Act 1956 Having their addresses ]
at 210, Atlas Mill Compound Near Reay Road ]
Station (W), Mumbai-400 010. ]
2. Sushila Signapurkar ]
Adult Indian Inhabitant, Director of Signapurkar ]
Leather House Private Ltd. Having her address at ]
Vaishali B-504, 5th Floor Love Lane, Mazagaon, ]
Mumbai-400 010. ]
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3. Kishore Shankar Signapurkar ]
Adult Indian Inhabitant, Director of Signapurkar ]
Leather House Private Ltd. Having his address ]
at Vaishali B-504, 5th Floor, Love Lane, Mazagaon, ]
Mumbai-400 010. ]
4. Husseine Abdeally Mamaji ]
Adult India Inhabitant ]
Director of Signapurkar Leather House Private Ltd. ]
Having his address at 303 Jewel Tower, ]
St. Paul Road, Bandra(West), Mumbai-400 050..Deleted ]...Defendants
Appearance:-
Ld. Advocate Pinto Nishad i/b. M/s. H & M Legal Associates for the
plaintiff.
Defendants absent (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 19/09/2024
JUDGMENT
( Dictated and pronounced in open Court)
01. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs. 2,92,102/- along with further interest.
Brief facts of the plaintiff’s case may be summarized as under:
02. As per the plaintiff, it is a Private Limited Company duly
incorporated and registered under the provisions of the Indian
Companies Act, 1956. It is providing service of Advertisement booking
all over India. Defendant No. 1 is a Limited Company and defendants
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No. 2 and 3 are directors of the said company. Defendant approached
to the plaintiff and placed order for advertisement booking services in
various newspaper and magazines between February, 2016 to April
2017. Accordingly, plaintiff provided services by publishing
advertisement in newspaper and magazines circulated within Mumbai.
Accordingly, plaintiff raised invoices to the tune of Rs. 2,95,650/-.
Plaintiff raised invoices against defendants which are accepted by
them. The defendants were supposed to raise complaint in respect of
invoices within a week from the date of receipt of same, however,
defendant has not raised any complaint. Defendants have made part
payment of invoices however, failed to make payment of some invoices
No.3597/16-17, 3766/16-17, 3955/16-17, 4025/16-17, and 0145/17-
18. As defendants failed to make payment of said invoices, plaintiff
issued notice dated 18/11/2017 and called upon defendants to make
the payment. Defendants received the said notice and replied through
advocate on 11/12/2017 and denied the liability. Defendants have
made part payment of the invoices and also paid the TDS amount and
issued TDS Certificate which can be seen from the ledger account.
Thus, defendants have admitted and acknowledged their liability.
Therefore, plaintiff is entitled to recover an amount of Rs. 2,92,102/-
from the defendants along with interest at the rate of 18% p.a. Hence,
the suit.
03. The writ of summons served to the defendant No. 1
however, failed to appear therefore, order was passed to proceed
ex-parte against defendant No.1 on 13/04/2018. Further, writ of
summons sent to defendants No. 2 and 3 is returned with remark,
"unclaimed". Therefore, order was passed to proceed ex-parte vide
order dated 04/02/2019. Further, defendant No. 4 is deleted as a
party in view of order below Exh. 8 on 14/03/2019.
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04. Further, on perusing contentions of the plaintiff and
documents on record, following points arose for my consideration, to
which my findings are recorded for reasons given below.
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled
to recover an amount of
Rs.2,92,102/-from defendants ?
If yes, at what rate of interest ?
Yes,
The plaintiff is entitled to simple
interest on the amount of
Rs. 2,48,400/- at the rate of 7%
p.a. from 24/01/2018 i.e. the date
of filing the suit till its full
realization.
2. What order and decree? As per final order.
05. In support of claim, the plaintiff has filed affidavit of claim
of Asif Ali Rana as P.W.1 at Exh. 9 and reiterated his contention in the
plaint for recovery of Rs. 2,92,102/- along with the further interest at
the rate of 18% p.a. from defendant. The plaintiff has filed and relied
upon the following documents. The plaintiff has filed evidence closed
pursis at Exh. 18.
Sr.
No. Exhibit Particulars
1 Exh.13 Original Letter of Authority
2 Exh.14
colly.
Office copy of Invoice No. 3597/16-17 dated
18.02.2017, 3766/16-17 dated 03.03.2017, 3955/16-
17 dated 18.03.2017, 4025/16-17 dated 25.03.2017,
0145/17-18 dated 21.04.2017, 1000/16-17 dated
06.07.2017.
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3 Exh-15
(colly)
Statement of ledger accounts supported by certificate
u/s 65B of The Indian Evidence Act.
4 Exh-16
(colly)
Office copy of Notice along with original postal
receipt,Acknowledgment receipt and original returned
envelopes.
5 Exh.17 Original reply of the defendant to the notice
R E A S O N S
As to points No. 1 and 2 :-
06. Learned counsel for the plaintiff argued that defendants
approached them to provide service of advertisement in newspapers
and magazines in Mumbai for defendant No. 1. Accordingly, plaintiff
provided service by advertising in various newspaper and magazines
and raised invoices to the tune of Rs. 2,95,650/-. Defendants made
part payment however, failed to pay the balance amount. Therefore,
notice is issued to the defendants to which defendant No. 1 has replied
and denied the liability. It is further submitted that defendants has
admitted that it has utilized the services of the plaintiff. Defendants
have failed to challenge the evidence of the plaintiff therefore, plaintiff
is entitled for an amount of Rs. 2,92,102/- along with interest and
further interest @ 18% p.a. on principal amount till its realization.
Hence, suit may be decreed with costs.
07. Perused plaint, oral and documentary evidence of the
plaintiff. Heard Ld counsel for the plaintiff. The plaintiff has filed this
suit through their authorized representative Mr. Asif Ali Rana P.W.1
and to substantiate said contention has filed authority letter at Exh. 13.
Further, it has come in the evidence of the Asif Ali P.W.1 that
defendant No.1 approached them to utilize their services for
advertisement in newspaper and magazines. Accordingly, plaintiff
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provided services from February 2016 to April 2017 and raised
invoices to the tune of Rs. 2,95,650/- at Exh. 14 colly. Further, on
perusing said invoices, it appears that invoice No. 3597/16-17 dated
18/2/2017, 3766/16-17 dated 03/03/2017, 3955/16-17 dated
18/03/2017, 4025/16-17 dated 25/03/2017 and 0145/17-18 dated
21/04/2017 bears seal and signature of defendants No. 1 company.
So far as invoice No. 1000 dated 06/07/2017 does not bear seal and
signature of the company therefore, it cannot be considered in the
evidence.
08. Further, in order to prove that defendant has made part
payment and balance amount is Rs. 2,95,650/- plaintiff has filed
ledger account statement along with Certificate u/s. 65B(4) of Indian
Evidence Act at Exh. 15 colly. On perusing said account extract, it
appears that an amount of Rs. 2,95,650 is due against defendants. As
defendants failed to pay the outstanding amount, plaintiff issued
notice dated 18/11/2017 at Exh. 16 colly and called upon defendants
to make payment of outstanding amount. Further, it appears that
notice is received by defendants No. 1 and so far as notice of
defendants No.2 and 3 returned with remark, "not known". The
plaintiff also filed reply dated 11/12/2017 given by defendants No. 1
vide Exh. 17. On perusing said reply, it appears that defendant No. 1
has admitted that they had utilized services of the plaintiff. However,
further contended that plaintiff had not placed and circulated the
advertisement as per the requirement of the defendant No. 1 therefore,
they sustained loss in their business. It is pertinent to note that the
invoices are for the period 18/02/2017 to 06/07/2017, it appears that
the reply is dated 11/12/2017. Though, defendant No. 1 has raised
objection with respect to the service of the plaintiff however, there is
nothing on record to show that defendants No. 1 has raised objection
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immediately after the receipt of the invoices. Even, defendants failed to
appear in the matter and contest it. They have not cross examined
plaintiff therefore, evidence of the plaintiff has remained
unchallenged.
09. Though, plaintiff has pleaded and stated in evidence that
it has raised invoices against defendants for an amount of
Rs.2,95,650/-. However, plaintiff has claimed an amount of
Rs. 2,92,102/- along with interest from the defendants. On perusing
the particulars of claim, it appears that principal amount is
Rs. 2,48,400/-. The plaintiff has claimed @ 18% p.a. on the principal
amount as per the terms and conditions in the invoices at Exh. 14
colly. As discussed above, defendants have not challenged the evidence
of the plaintiff therefore, it has remained unchallenged. Therefore, I
am of the view that plaintiff is entitled for an amount of Rs. 2,92,102/-
along with interest.
10. So far as further interest is concerned, plaintiff has
claimed at the rate of 18% p.a. However, I am of the view that the
rate of interest claimed by the plaintiff is excessive in nature as
compared of interest of Nationalized bank. Therefore, in view of
section 34 of Civil Procedure Code, I am of the view that it would be
just and proper to grant interest @ 7% p.a. from the date of filing of
the suit till its realization on principal amount. It is pertinent to note
that there is nothing on record to show that defendants No. 2 and 3
are responsible for the acts of defendant No. 1. Therefore, I am of the
view that defendant No. 1 only liable to repay the outstanding amount
to the plaintiff. Defendants No. 2 and 3 are not liable. Hence, I answer
point No. 1 in the affirmative. In the result, I answer to point No. 2, I
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proceed to pass the following order.
O R D E R
1] The Summary Suit No. 223 of 2018 is partly decreed with costs.
2] The defendant shall pay to the plaintiff an amount of
Rs. 2,92,102/- (Rupees Two Lakhs Ninety Two Thousand One
Hundred and Two only).
3] The plaintiff is entitled to simple interest on the amount of
Rs. 2,48,400/- at the rate of 7% p.a. from 24/01/2018 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 them, if any provided for in rules.
5] The decree shall be drawn accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Dated: 19/09/2024 Court Room No.81
Dictated on: 19/09/018
Corrected & signed on: 20/09/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/09/2024 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 19/09/2024
JUDGMENT/ORDER signed by P. O. on 20/09/2024
JUDGMENT/ORDER uploaded on 20/09/2024
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