Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010020122018
CNR NO. MHCC010020122018
Presented on
07-02-2018
Registered on 19-04-2018
Decided on 11/12/20
Duration Yrs. M. Days
02 10 04
CNR No. MHCC010020122018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SHORT CAUSE SUIT NO.1840 OF 2019
(OLD S.C.SUIT NO.1147 OF 2018)
M/S. NEW MANAK METALLDYS LIMITED PVT.
LTD.
Formerly known as
Manak Metalloys Limited
Having address at Manak House
2nd Floor, 44, C.P. Tank Road,
Mumbai – 400 004. ...Plaintiff.
V/s.
1. M/S. EXCEL STEEL
2. MR. BHARAT ACHLARAM MODI
An adult aged about 42 years
Partner of M/s. Excel Steel,
3. MRS. KAMLABEN SATISH RATHOD
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An adult aged about 40 years
Partner of M/s. Excel Steel
All Defendants are having address
At Shop No.13, Tulsi Building,
178, Khetwadi Back Road,
Mumbai – 400 004. ....Defendants.
Appearances:
Ld. Adv Mr. S.R. Maurya for plaintiff.
None present for defendants.
Suit proceeded ex-parte against defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.20)
DATED : 11th December, 2020
J U D G M E N T
(Ex-parte)
1. This is a suit for recovery of amount of Rs.9,49,722/- with
interest.
2. In brief, it is contention of the plaintiff that, plaintiff is a
Limited Company. It carries on business as Stockist and Dealer of
Ferrous and Non-Ferrous Metals and Steel Merchant. It also deals with
other Industrial Raw Materials.
3. Defendant No.1 is Partnership Firm. Defendant Nos.2 and
3 are the partners of Defendant No.1 Firm.
4. Plaintiff is in regular course of business and as per Order
placed by the defendants, the plaintiff sold and delivered “S.S/
Industrial Raw Materials time to time.
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5. The plaintiff sold and delivered “S.S. Industrial Raw
Material. Plaintiff raised various Tax Invoices from time to time for the
period commencing from 01.04.2015 to 01.04.2016, 01.04.2016 to
31.03.2017 and 01.04.2017 to 31.01.2018. The defendant accepted,
acknowledged and consumed the material without raising any dispute.
Defendant made part payments regarding the materials sold by the
plaintiffs, Defendant last made part payment of Rs.5,00,000/- on
28.09.2016 leaving behind a balance principles amount of
Rs.7,29,910/-. The defendant did not make payment of the said
outstanding amount. Therefore, plaintiffs issued Notice through
Advocate dated 04.12.2017 and thereby claimed said amount of
Rs.7,29,910/- with interest at the rate of Rs.24% per annum for 458
days from the period 29.09.2016 to 31.12.2017. Therefore the suit be
decreed. Defendant be directed to pay to the plaintiff total sum of
Rs.9,49,742/- with further interest at the rate of 24% per annum of
principle amount of Rs.7,29,910/-.
6. Defendants inspite of service of writ of summons did not
appear. Therefore the suit is proceeded Ex-parte against the defendant
Nos.1 to 3 as per Roznama / Noting dated 02.11.2018. I have heard
Learned Advocate Shri Maurya for plaintiff.
7. Plaintiff examined P.W.1 Sangeet Dhanraj Mehta. He filed
evidence affidavit vide Exh.4 as P.W.1. Following documents are marked
as exhibit in the evidence of P.W.1. They are at Exh.6 to 13.
Ex. Sr.No. Particular
6 1 Extract of plff board resolution dt. 04/12/2017.
7 2 Plff tax invoice no.SA/C/00023 dt. 03/05/2016.
8 3 Plff original extract of ledger statement of account for
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the period of 01/04/2016 to 31/03/2017,
04/04/2017 to 31/01/2018.
9 4 Plffs bank statement of account (account
no.22505824422) for the period of 01/06/2016.
10 5 Office copy of demand notice dt.04/12/2017.
11 6 Registered post receipts dt.05/12/2017.
12 7 Acknowledgement card.
13 8 Certificate under section 65(b) of evidence act.
8. P.W. 1 Sangeet Dhanraj Mehta deposed as per averments of
the plaint. He deposed that plaintiff in regular course of business and
as per Order placed by the defendants, the plaintiff sold and delivered
“S.S./ Industrial Raw materials” i.e. “S.S. Sheet/ plate vide plaintiff's
Tax Invoice No.SA/C/00059/15-16 dated 05.08.2015 for
Rs.24,29,910/-. The defendants accepted, acknowledged and consumed
the materials without raising any dispute of whatsoever nature like
quality, quantity and/or rates.
9. P.W.1 Sangeet Dhanraj Mehta deposed in his evidence
affidavit that defendants made last part payment of Rs.5,00,000/- on
28.09.2016 by RTGS, leaving behind a balance principle sum of
Rs.7,29,910/-.
10. Perused Tax Invoices Exh.7. It is dated 05.08.2015. The
total amount of Sale is 24,29,910/-. The date of part payments is
28.09.2016. Suit is filed on 07.02.2018. In this way suit is filed as per
the Limitation Act.
11. There is nothing on record to discard the contention of the
P.W.1 that amount of Rs.7,29,910/- is still due and payable by the
defendants to the plaintiff.
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12. Perused Section 34 of the Code of Civil Procedure. It states
where and in so far as a decree is for the payment of money, the Court
may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of
the suit to the date of the decree, in addition to any interest adjudged
on such principal sum for any period prior to the institution of the suit,
with further interest at such rate not exceeding six percent per annum,
as the Court deems reasonable on such principal sum, from the date of
the decree to the date of payment, or to such earlier date as the Court
thinks fit;
13. The proviso of Section 34 of the Code of Civil procedure
states that where the liability in relation to the sum so adjudged had
arisen out of a commercial transaction, the rate of such further interest
may exceed six percent per annum, but shall not exceed contractual
rate of interest or where there is no contractual rate, the rate at which
moneys are lent or advanced by Nationalized Banks in relation to
Commercial transactions.
14. The date of invoice Exh,07 is 05.08.2015. Suit is filed on
07.02.2018. In this way the suit is filed within three years from the
date of the said invoice and within three years from last part payment
of Rs.5,00,000/-. Therefore, the suit is filed within the Limitation Act.
Hence, in the facts and circumstances, plaintiff is not entitled to charge
interest at the rate of 24% per annum on the said outstanding amount.
The plaintiff is entitled to charge interest at the rate of 9% per annum
from 29.09.2016 on outstanding amount of Rs.7,29,910/- till its full
realisation.
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15. Hence plaintiff is entitled to recover the said amount of
Rs.7,29,910/- with interest at the rate of 9% per annum on
Rs.7,29,910/- from 29.09.2016 till is full realisation from all defendants
jointly and severally. Hence, I proceed to pass the following order.
ORDER
The Suit No. 1840 of 2019 (Old Suit No. 1147/18) is partly decreed
with costs as under-
1. The defendant No. 1 to 3 jointly and severally do pay to the plaintiff
Rs.7,29,910/- (Rs. Seven Lakh Twenty Nine Thousand Nine Hundred
Ten only) with interest at the rate of 09 percent per annum from 29-09-
2016 on amount of Rs.7,29,910/- till its full realization.
2. Decree be drawn up accordingly.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 11/12/2020 City Civil Court, Gr. MUMBAI
Dictated on : 11/12/2020
Transcribed on : 21/12/2020
Checked on : 22/12/2020
and Signed on : 22/12/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.12.2020 at 04.55 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 11.12.2020
Judgment/order signed by P.O. on 22.12.2020
Judgment/order uploaded on 22.12.2020
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