Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit No.410/2020
MHCC010020222020 Presented on : 15/02/2020
Registered on : 27/02/2020
Decided on : 11/07/2022
Duration : 02Y 04M 14D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.410 OF 2020
1. Mrs. Radhika George
An adult Indian inhabitant of
Maharashtra, having address at Ray
Compound, Opposite to Holy Trinity
Church, Post I.T.I., Powai, Mumbai 400
076.
…PLAINTIFFS
2. Mr. Jimmy Cherian George
An adult Indian inhabitant of
Maharashtra, having address at Ray
Compound, Opposite to Holy Trinity
Church, Post I.T.I., Powai, Mumbai 400
076.
VERSUS
1. Mrs. Shivagi Darasing Rathod
An adult Indian inhabitant of
Maharashtra, having address at
Shivganga Niwas, Near Chinchkhed Road
Canal, Pimpalgaon Baswant, Nashik 422
209
2. Mr. Darasing Rathod
An adult Indian inhabitant of
Maharashtra, having address at
Shivganga Niwas, Near Chinchkhed Road
Canal, Pimpalgaon Baswant, Nashik 422
209
3. Mr. Banti Darasing Rathod
An adult Indian inhabitant of
Maharashtra, having address at
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2 Comm. Suit No.410/2020
Shivganga Niwas, Near Chinchkhed Road
Canal, Pimpalgaon Baswant, Nashik 422
209
4. Mr. Shubham Darasing Rathod
An adult Indian inhabitant of
Maharashtra, having address at
Shivganga Niwas, Near Chinchkhed Road
Canal, Pimpalgaon Baswant, Nashik 422
209 …DEFENDANTS
Smt. Harashika Makwana, learned advocate for plaintiffs.
Defendants : exparte.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 11/07/2022)
This is a suit for recovery of sum of Rs.2,80,000/ towards
principle amount and Rs.1,17,370/ towards pre suit interest @ 18 %
p.a.
2. It is case of plaintiff that plaintiffs are carrying business of
Construction and Site Development. They are owner of machine
“Apollo Model Wet Mix Paver Finisher Unit”. Defendants are the
relatives interse. Defendant Nos.3 and 4 approached to the site of
plaintiffs at Nashik in June 2016 for purchasing aforesaid machine. Said
machine was lying idle at the site of plaintiff at Nashik. Plaintiff agreed
to sell the said machine to defendant No.3 and 4. Defendant Nos.3 and
4 inspected the machinery and thereafter agreed to purchase the same.
Thereafter for finalizing the said transaction, defendant Nos.3 and 4
visited office of plaintiff at Mumbai. After negotiation the price was
fixed at Rs. 3 Lakh. On 25.07.2016 defendant Nos. 3 and 4 visited the
office of plaintiff with draft Deed of Declaration for purchasing the said
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3 Comm. Suit No.410/2020
machinery.
3. Defendant Nos.3 and 4 misrepresented plaintiff No.2 and
convinced him to sign and accept all terms and conditions mentioned in
drft deed of declaration. Accordingly defendant Nos.3 and 4 collected
invoice of said machinery and other relevant documents. Invoice of sale
of machinery evidencing the delivery of machinery in August 2016.
Defendant failed to give acknowledgment copy of the signed draft deed
of declaration. Defendant Nos.3 and 4 taken delivery of machinery of
plaintiff by misrepresenting Mr. Babu Chavan, employee of plaintiff at
Nashik Site in charge.
4. After repeated request and remainders defendant No.1
being relative of defendant Nos.3 and 4, issued two cheques on
10/08/2016 of Rs.1,50,000/ each towards consideration/price of the
said machinery. However, the said cheques dishonored due to funds
insufficient in account of defendants. Thereafter, on 09.02.2017
defendants have made part payment of Rs.20,000/. Again, plaintiffs
several times requested to defendants for payment of remaining amount
but they did not pay the same. Hence, plaintiffs filed this suit.
5. Defendant served with suit summons but they did not
appear. Hence, suit proceeded exparte against them.
6. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiffs proved that they
sold machine “Apollo Model Wet Mix
Paver Finisher Unit” to the defendant
Nos.3,4 for consideration of Rs.3 Lakh as
…Yes.
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4 Comm. Suit No.410/2020
per draft Deed of declaration
25/07/2016?
2. Whether the plaintiffs proved that
defendant did not pay the remaining
consideration of Rs.2,80,000/ ?
…Yes
3. Whether plaintiff is entitled for the
recovery of amount of Rs.3,97,000/ and
future interest ?
…Yes
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 To 3:
7. Heard learned counsel of Plaintiffs. Plaintiffs have
examined plaintiff No.1 to prove their case. She reproduced all content
of plaint in her chiefexamination. Her evidence is supported by
documentary evidence as under : Photo copy of Machinery Sale
Confirmation, photocopy of invoice of machine, original dishonored
cheque with bank memo, Photocopy bank account.
8. In view of evidence of PW1 and documentary evidence, it
becomes clear that defendants agreed to purchase aforesaid machinery
for consideration of Rs.3 Lakh. The delivery of said machinery taken by
defendants from Nashik site of plaintiffs. The negotiations regarding the
price taken place at the office of plaintiffs at Mumbai. The part payment
of Rs.20,000/ paid to plaintiffs on 09/02/2017. Evidence of PW1
remained unchallenged. Her evidence is supported by documentary
evidence mentioned in para supra. There is no reason to disbelieve her
testimony. Therefore, plaintiffs are entitled for the recovery of the same.
As far as interest amount of Rs.1,17,370/ @18% p.a. is concerned, it
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5 Comm. Suit No.410/2020
seems that there is no written agreement about the rate of interest.
9. On the point of rate of interest in commercial transaction,
Hon’ble Delhi High Court in a case of Sasumorov Enterprises Private
Limited V/s. Odeon Builders Pvt. Ltd, CS(Comm) 927/2016
dtd.16/11/2018, observed and held, “as far as the claim of the plaintiff
for the relief of pre suit, pendente lite and future interest @24% p.a. is
concerned, though undoubtedly the invoices of the plaintiff on
defendant contain a clause to the said effect but considering the
prevalent rates of interest, even quacommercial transactions the claim
for interest @ 24% p.a. is found to be excessive. The plaintiff is found
entitled to pre suit interest @ 15% p.a., from expiry of 60 days of the
date of each of the invoices and till the date of institution of the suit and
is avoided interest pendente lite and future @ 9% p.a.”
10. In view of aforesaid case law, considering entire facts and
prevailing market rate of interest, it is desirable to grant interest at the
rate of 18 % p.a. Hence, as per the said rate plaintiff is entitled for
interest amount of Rs.1,17,370/ as prayed. Thus, plaintiff is entitled for
recovery of Rs.3,97,370/ and future interest @ 18% p.a. on principle
sum of Rs.2,80,000/ from date of filing of suit till realization of
amount. Thus, I answered point Nos. 1 to 3 as above. Hence, I pass the
following order.
ORDER
1. Suit is decreed with costs.
2. The defendants are jointly and severally directed to pay
to plaintiff the amount of Rs.2,80,000/ with interest @
18% p.a. from the date of suit till realization of the said
amount.
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6 Comm. Suit No.410/2020
3. Defendants are jointly and severally directed to pay the
plaintiffs pre suit accrued interest of Rs.1,17,370/.
4. Decree be drawn up accordingly.
Date : 11/07/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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7 Comm. Suit No.410/2020
Dictated on : 11/07/2022.
Checked on : 11/07/2022.
Signed on : 11/07/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11/07/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 11/07/2022.
Order signed by P.O. on 11/07/2022.
Order uploaded on 11/07/2022.
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