Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010018832018 Presented on 03-02-2018
Registered on 12-09-2018
Decided on 20-07-2023
Duration 05Y : 05M: 17D
Exhibit 10
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 149 OF 2021
Mr. Champalal Chhogalal Sanghvi ]
An adult, aged about 60 years ]
Proprietor of M/s. Jaydeep Metals ]
having its office, At Taldhwaj Bhawan,]
1st floor, 3rd Panjarapole Lane, ]
Mumbai-400 004. ]
Through his Constituted Attorney ]
Mr. Prateek Champalal Sanghvi ]...Plaintiff
Versus
Mr. Bharat Patel ]
(full name not known) ]
An adult, aged about 60 years ]
Proprietor of M/s. Apex Engg. Co. ]
Having address At ]
Plot No.408, GIDC, Near Dediyasan ]
Near Moon Agro, Mahesana- 384 001 ]
Gujarat. ]...Defendant
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2 Sum Suit No.149/2021
Appearance :
Ld. Advocate Mr. Sujeet R. Maurya for plaintiff.
None for defendant (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 20-07-2023
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.9,67,584/-. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is proprietor of M/s. Jaydeep Metals carrying
on business as a Stockist and Dealer of Ferrous and Non-Ferrous Metals
& Steel Merchant. The defendant is proprietor of M/s. Apex Engg.Co.
According to the plaintiff, in the regular course of business, the
defendant placed verbal purchase order of ‘S.S.Coils’ (hereinafter
referred to as the “materials”). The plaintiff sold and delivered the
said materials to the defendants for the sum of Rs.5,97,618/-, for
which Tax Invoice No.138 dated 06-02-2015 was raised on the the
defendant. The said materials were dispatched to the defendant
through Lalji Mulji Transport. The said materials were duly accepted,
acknowledged and consumed by the defendants without raising any
dispute of quality, quantity and/or rates.
3. According to the plaintiff, though the payment terms was
on 15 days credit basis, but after receiving the materials, the defendant
ignored and neglected the said terms and conditions on one pretext or
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the other. The defendant, towards part payment of plaintiff aforesaid
outstanding principle sum, signed and issued a Cheque bearing
No.000872 for the sum of Rs.2,00,000/- which was dishonoured on its
presentation for encashment and therefore, the plaintiff initiated a
Criminal Proceeding against the defendant u/s. 138 of Negotiable
Instruments Act, 1881, which is still pending.
4. According to the plaintiff, when the defendant for a long
time did not pay any sum, the plaintiff issued a demand notice dated
10-01-2018 through advocate. But the defendant failed and neglected
to pay the outstanding principal amount of Rs.5,97,618/- alongwith
interest. Hence, the present suit.
5. The defendant was served with the writ of summons. The
plaintiff has filed affidavit of service at Exh.6. Despite service, the
defendant has not caused his appearance and therefore, the suit
proceeded ex-parte against him by the order dated 05-02-2020.
6. In support of claim, the plaintiff filed its affidavit of claim
at Exh.7 and reiterated its contention for recovery of Rs.9,67,584/-
along with interest at the rate of 21% p.a. The plaintiff has filed and
relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.9 Office copy of Invoice No. 138 dated 06-02-2015
2 Exh.10(colly.) Demand Notice dated 10-01-2018 alongwith copy
of postal receipt and Track report.
7. To decide the present suit, following points arose for my
consideration to which my findings are recorded against each of them
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for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.9,67,584/-
from the defendant?
If yes, at what rate interest?
Partly yes. Entitled to
Rs.5,97,618 and interest @
Rs.9% p.a. from 11-01-2018.
2. What order and decree? As per final order.
R E A S O N S
AS TO POINTS NO. 1 & 2:
8. The plaintiff has filed his claim affidavit in support of the
case set out in the plaint at Exh.7 and also placed on record some
documents as referred to above. Evidence on affidavit placed on
record by the plaintiff supports to his case that the defendant had
placed an order with the plaintiff for purchasing the materials, and in
accordance with the said order, the plaintiff supplied the goods on
credit to the defendant and had raised the invoice No.138 dated
06-02-2015 for Rs.5,97,618/-. According to the plaintiff, payment
was to be made within 15 days, but not made. It is also found that the
plaintiff had issued the legal notice dated 10-01-2018 through the
advocate and it is duly served on the defendant. Despite service of the
said notice and calling upon the defendant to clear off the outstanding
dues, the defendant neither the paid amount nor replied the said
notice. Evidence of the plaintiff remained unrebutted and
unchallenged. Therefore, there is no reason to disbelieve the evidence
of the plaintiff particularly when it is supported by the documents.
Therefore, I hold that the plaintiff has proved that he is entitled to
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recover the amount of Rs. 5,97,618/-
9. It may be seen that the plaintiff has claimed the interest
Rs.3,69,966/- at the rate of Rs.21% p.a. on the principal amount i.e.
on the amount of Rs.5,97,618/- from 22-02-2015, the date of after 15
days of issuance of invoice, till the date of filing of the suit. Thus,
according to the plaintiff, he is entitled to total amount of
Rs.9,67,584/-. However, it is important to note that there appears no
agreement to pay the interest on the outstanding amount mere recited
in the invoice about taxing interest at the rate of Rs.21% p.a. cannot
be considered to be agreed rate of interest. However, transaction
between the plaintiff and the defendant was of the commercial in
nature and therefore, because of making default by the defendant
despite of calling upon to pay the outstanding amount, I am of the
view that plaintiff is entitled to the interest. However, the interest
claimed by the plaintiff appears to be excessive and therefore, I hold
that the plaintiff is entitled to the sum of Rs.5,97,618/- alongwith the
interest at the rate of Rs.9% p.a. till its full realization from 11-01-
2018, the date of serving the demand notice at the rate of Rs.9% p.a.
on principal amount of Rs.5,97,618/- and accordingly, I answer point
No.1. In the result, in an answer to point No.2, I proceed to pass the
following order.
O R D E R
1] The Summary suit No. 149 of 2021 is partly decreed with costs.
2] The defendant shall pay the amount of Rs.5,97,618/- (Rupees
Five Lakhs Ninety Seven Thousand Six Hundred and Eighteen
only) to the plaintiff along with interest at the rate of Rs.9%
p.a. from 11-01-2018 till its full realization.
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3] The plaintiff is entitled to get refund 2/3rd of the court fees paid
by him.
4] Decree shall be drawn accordingly.
( K. P. Shrikhande )
Mumbai Judge, City Civil Court, Gr. Mumbai.
Date- 20-07-2023 Court Room No.61
Dictated on : 20-07-2023
Corrected & signed on : 21-07-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21-07-2023 at 3.00p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
20-07-2023
JUDGMENT/ORDER signed by P. O. on 21-07-2023
JUDGMENT/ORDER uploaded on 21-07-2023
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