Order 1

Order Details: Other
Pdf Text: MHCC010020462018 Presented on 08/02/2018
Registered on 08/02/2018
Decided on 21/06/2024
Duration 06Y: 04: 13D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 39 OF 2018
IN
SUMMARY SUIT NO. 45 of 2017
Hastimal Saremal Sakaria HUF ]
Through its Karta and Manger ]
Hastimal Saremal Sakaria age 62 years ]
of Mumbai an adult Indian inhabitat ]
carrying on business as a sole proprietor ]
in the firm name and style of P.S. ]
Enterprises at and from 41/43, Champagali, ]
1st Floor, Kalbadevi Road, Mumbai400 002. ]...Plaintiff
VERSUS ]
1. Dolphin Clothing ]
A firm having its addresss at and from ]
312A/2, Shah and Nahar Industrial Estate, ]
S.J. Marg, Lower Parel, Mumbai400013. ]
2. Dinesh Tarachand Jain ]
Age not known, an adult Indian Inhabitant ]
carrying on business as a sole proprietor ]
in the firm name and style of Dolphin ]
Clothing at and from 312A/2, Shah ]
and Nahar Industrial Estate, S.J. Marg, ]
Lower Parel, Mumbai400013. ]...Defendants
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Appearance:
Ld.Advocate Mr. Ramesh Jain for the plaintiff.
Defendants absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 21/06/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 24/01/2018. Defendants failed to file their reply.
Therefore, defendant had taken out notice of motion No. 2898/2018
which came to be allowed on 04/02/2021 subject to costs of Rs. 500/
to be paid the the plaintiff. It appears that defendant failed to comply
said direction. Hence, summons for judgment was proceeded further
without reply of defendants.
02] As per the plaintiff, he being Kara of HUF carrying on
business as a sole proprietor in the firm name and style
'P. S. Enterprises'. Defendant No.1 is carrying on business as a sole
proprietor in the firm name and style 'Dolphin Clothing'. Further,
plaintiff has supplied goods to the defendants as per their purchase
orders and instructions vide Invoice No.0039 dated 10/12/2013 for an
amount of Rs.1,84,180/ and Invoice No. 0040 dated 12/12/2013 for
an amount of Rs. 1,84,741/ total amounting to Rs. 3,68,927/. The
defendants received said Invoices however, they failed to pay the
amount as per the said Invoices. Therefore, plaintiff has issued legal
notice on 11/07/2016 and called upon defendants to pay amount of
Invoice along with interest at the rate of 18% p.a. The defendants
replied to the said notice on 08/08/2016 and admitted receipt of goods
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however, failed to pay the amount. Therefore, plaintiff has filed suit to
recover an amount of Rs. 5,67,601/ including interest and prayed for
further interest.
03] Defendants appeared in the matter on 13/02/2017 and
thereafter, plaintiff has taken out this summons for judgment.
Defendants failed to file reply to the said summons for judgment
therefore, they have taken out Notice of Motion No.2898/2018 to
condone the delay and permission to file reply. The said Notice of
Motion came to be allowed on 04/02/2021 subject to costs of Rs. 500/
to be paid to the plaintiff. Defendants failed to pay the said costs to the
plaintiff therefore, summons for judgment was proceeded further vide
order dated 27/06/2022.
04] It is argued on behalf of plaintiff that he in order to prove
his contentions, he has filed original documents vide list Exh.3.
Further, defendants have failed to file reply to the summons for
judgment therefore, as per Order 37, Rule 6 of Civil Procedure Code
(C.P.C.), he is entitled for decree. Hence, suit may be decreed with
costs.
05] Perused summons for judgment, plaint and documents
filed by the plaintiff. Heard Ld counsel for the plaintiff. On perusing
record, it appears that conditional leave was granted to defendants vide
order dated 04/02/2021 however, defendants have not fulfilled said
condition. Therefore, as per Order 37, Rule 6(b) of C.P.C. plaintiff is
entitled for judgment. It is the contention of the plaintiff that he has
supplied goods mentioned in Invoices to the defendants. Plaintiff has
filed office copies of said Invoices on record vide list Exh. 3/1. On
perusing said Invoices/Bills, it appears that said Invoices are raised on
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defendants. Thus, in view of said Invoices total amount due against
defendants is Rs. 3,68,927/.
06] As defendants failed to pay said amount despite of
repeated demands, plaintiff had issued legal notice dated 11/07/2016
filed vide list Exh. 3/2 to the defendants and called upon them to pay
principal amount with interest. Defendants have replied to said notice
on 04/08/2016 filed on record vide list Exh. 3/3 have admitted receipt
of goods however, raised issue that all goods they received were of bad
and deteriorated quality as well as substandard quality. Further, it is
contended that defendants had informed about the same to the plaintiff
and asked him to take back said goods and further called him to pay
rent charges of godown. It is pertinent to note that defendants have not
mentioned specific date on which date he had communicated to the
plaintiff about substandard quality of goods received by them prior to
this reply. Even, defendants have not specifically mentioned how much
months they kept alleged substandard material in godown and how
much charges were called upon to pay by the plaintiff. Thus, it appears
from reply given by the defendants to the notice of plaintiff that receipts
of goods is admitted. It was the duty of the defendants to prove that
goods received by them were of substandard quality and it was
informed by them to the plaintiff. It is pertinent to note that defendants
have failed to prove the same. Further, despite of calling defendants to
pay amount of Rs.3,68,927/ with interest at the rate of 18% p.a. by
issuing demand notice by the plaintiff, they failed to pay said amount.
Therefore, I am of the view that plaintiff has proved that he had
supplied goods to the defendants as per Invoices at Exh.3/1 and
amount mentioned in said Invoices/bill is due against the defendants.
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07] It is the contention of the plaintiff that an amount of
Invoices/Bills were to be paid immediately from the date of said
Invoices and in default to pay interest at the rate of 18% was to be paid
as agreed between the parties. Therefore, plaintiff is claiming interest at
the rate of 18% p.a. on outstanding amount which comes to
Rs. 1,54,764/. It is pertinent to note that plaintiff has not contained
whether there was any written agreement in that regard. On perusing
Invoices/bills on record at Exh. 3/1, it appears that there is no clause of
interest in the said Invoices/bills. Even, it is not mentioned in how
much day payment is to be made. The rate of interest claimed by the
plaintiff is excessive as compared to rate of interest of Nationalized
Banks. Therefore, having regard to the provision of section 34 of the
Civil Procedure Code, I am of the view that granting the interest at the
rate of 7% per annum on the principal amount would be just, proper
and reasonable. Hence, I hold that the plaintiff is entitled to recover
principal amount of Rs. 3,68,927/ alongwith interest at the rate of 7%
per annum on the principal amount, from the date of filing the suit till
its full realization. Defendant No. 1 is a proprietor firm and defendant
No. 2 is proprietor of defendant No. 1 therefore, both defendants are
jointly and severally liable to pay outstanding amount alongwith
interest to the plaintiff as discussed above. Thus, considering the facts
and circumstances of the case, it is necessary to partly allow Summons
for Judgment. Hence, I proceed to pass following order.
ORDER
1) Summons for judgment No.39/2018 in Summary Suit
No.45/2017 is partly allowed as follows:
a) Summary Suit No. 45/2017 is hereby partly decreed with
the costs.
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2) The defendants shall jointly and severally to pay an amount of
Rs. 3,68,927/ (Three Lakhs Sixty Eight Thousand Nine Hundred
Twenty Seven ) to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
amount Rs. 3,68,927/ at the rate of 7% per annum from
08/12/2018, the date of filing of suit till its full realization.
4) The plaintiff may be entitled to get refund the courtfees paid, if
provided for in Rules.
5) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Date: 21/06/2024 C.R.No.81
Dictated on : 21/06/2024
Corrected & signed on :24/06/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
25/06/2024 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 21/06/2024
JUDGMENT/ORDER signed by P. O. on 24/06/2024
JUDGMENT/ORDER uploaded on 25/06/2024
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