Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Suit No. 262/2018
Ex.
Registered on : 08.02.2018
Received on : 08.02.2018
Decided on : 25.09.2018
Duration : 00 Y. 7 M. 18 D.
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
SUMMARY SUIT NO. 262 OF 2018
M/s. Bharati Enterprises,
Dexta Police Cooperative Housing
Society Ltd., B1/3, Ganesh Building,
Dr. Kapse Nagar, Ghatkopar (E),
Mumbai 400 075
Through Proprietor, Shri Mukund
Radhakishan Kakad, Age 39 years,
occupation: Business, Civil Contractors ... Plaintiff.
V/s.
1.The State of Maharashtra
Through Secretary, Public Works
Department, Mantralaya, Mumbai32
2.The Executive Engineer Central Mumbai
(P.W.) Division Government of Maharashtra,
Ganpat Jadhav Marg, Worli, Mumbai400 018
3. Sub Divisional Engineer (P.W.) North Division
Shaitan Chowki, Dadar (W),
Mumbai400 028.
4. Sub Divisional Engineer (P.W.)
Sub Division No.1, Worli, Ganpat Jadhav Marg,
Public Works Department, Sub Division No. 1,
Worli, Mumbai400 018
6. Senior Divisional Accounts Officers,
Central Mumbia, P.W. Division,
Ganpat Jadhav Marg, Worli,
Mumbai400 018. ... Defendants.
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2 Judgment in Suit No. 262/2018
Appearances: Ld. Adv. Mr. G.B. Pawar for the plaintiff.
Ld. Advs. Mr.Kudalkar & Mr.Kapse for the
defendants.
Coram : D.K. Gudadhe, Adhoc Judge (C.R.No.12)
Dated: 25th September, 2018
Judgment
1. This suit has been filed for recovery of Rs. 41,64,018/
towards the outstanding of four bills which came to raise the plaintiff
against the defendants, along with interest of Rs. 10,21,514/ @ 18%
per annum on principal amount with further interest @ 18% per annum
and also costs of Rs. 5,00,000/. The facts of the plaintiff's case in short
are as under.
2. The plaintiff is a propriety firm and engaged in Civil
Construction Work. The said firm is also registered contractor with
PWD Department of Maharashtra. Sometime in the past, the plaintiff
received contract of construction of Civil Work from the defendants and
accordingly, he carried out the said work and raised running bills for
four civil works is total amounting to Rs. 41,64,018/. The said
contract was written one in respect of raising of the bills. Not only this,
even the defendants issued work completion certificate for all four
works on 08.09.2017. In spite of this, defendants failed to pay an
amount of bills within three months from the date of submissions of
first and final bill.
3. Therefore, the plaintiff sent notice on 29.05.2017, to
defendant No. 2, but he failed to take care of the notice. All the
defendants are jointly and severally liable to pay the bills, but they
failed hence, the plaintiff left with no other option than to file this suit.
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3 Judgment in Suit No. 262/2018
4. Defendants though served with the writ of summons did
not cause their appears but failed to give answer the notice of the same.
Therefore, the plaintiff has taken out the summons for judgment. But
the defendants in spite of service of summons for judgment did not
apply for leave to defend. Therefore, matter set down for passing
judgment.
5. On these facts of the matter, following points arise for my
determination. I have given my findings thereon for the reasons
mentioned in the subsequent paras.
Sr.No. ISSUES FINDINGS
1. Whether the plaintiff is entitle for amount
of Rs. 39,08,198/ towards the four bills,
he raised for the work done for the
defendants ?
Yes.
2. Whether the plaintiff is entitle for Rs.
7,19,402/ towards the interest @ 18%
per annum ?
Yes, but @ 9% per
annum.
3 Whether the plaintiff is entitled for further
interest on the principal sum @ 18% per
annum ?
Yes, but @ 9% per
annum.
4. What order and decree ? As per final order.
Reasons:
As to Point No. 1 :
6. So far as the first point is concerned, the plaintiff stated
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4 Judgment in Suit No. 262/2018
facts on his affidavit by way of summons for judgment other than this,
there is nothing on record. However, it is pertinent to note here that
the defendants in fact did not oppose the plaintiff's claim. Therefore, I
left with no other choice than accept the plaintiff's case. Therefore, I
answer the same in affirmative.
As to Point No. 2 :
7. So far as this issue is concerned, the plaintiff claimed for
interest @ 18% per annum, but failed to mention on what basis he is
asking for interest at such rate. Even the plaintiff's written contract is
silent on this. However, it is pertinent to note here that the plaintiff's
claim is for recovery of money. In view of this and in view of the
specific provision of Sec. 34 of the CPC, I am of the opinion that the
plaintiff is entitled for some interest on the due amount. Such interest
may be at rate at which money is lent or advanced by the Nationalised
Banks in relation to the commercial transaction. Apparently, the
transaction in question is commercial transaction. The lending rate of
Nationalised Banks at a relevant time was 9% percent per annum.
Therefore, in my opinion, the plaintiff is entitled for interest at such
rate. Accordingly, I answer this point as partly proved.
As to Point No. 3 :
8. So far as this issue is concerned, in view of my findings to
point Nos. 1 and 2, I am of the opinion that the plaintiff is also entitled
for further interest at same rate of interest i.e. 9% per annum
considering the nature of transaction. Accordingly, I answer this point.
As to Point No. 4 :
9. In view of my findings to above points and reasons for the
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5 Judgment in Suit No. 262/2018
same, suit deserves to partly decreed. At this juncture, it will not be out
of place to mention here that the plaintiff has prayed for costs of Rs.
5,00,000/. However, this appears to be compensatory costs, but failed
to establish how he is entitle for such compensatory costs. Therefore, in
my opinion, the plaintiff is entitle for simple cost of the proceeding as
per the provisions of Sec. 35 of the CPC. Accordingly, I answer this
point proceed to pass order in following terms.
Order
1. The suit is partly decreed with costs.
2. Defendant Nos. 1 to 4 pay jointly and severally through
defendant no.2 an amount of Rs. 41,64,018 to the plaintiff
alongwith interest @ 9% per annum from the due date of
payment of each of the bill till institution of the suit with further
interest at the same rate on the principal sum so adjust (i.e. an
amount of Rs. 41,64,018/ plus accrued interest on this sum till
filing of the suit) till its realisation.
3. Decree be drawn up accordingly.
4. Summons for Judgment No. 133/2018 is disposed of accordingly.
(D.K. Gudadhe)
Adhoc Judge
25.09.2018. City Civil Court, Gr. Bombay.
Dictated on : 25.09.2018.
Transcribed on : 28.09.2018.
Signed on : 01.10.2018.
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6 Judgment in Suit No. 262/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 03.10.2018 11.00 A.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
25.09.2018
JUDGMENT /ORDER signed by P.O. on 01.10.2018
JUDGMENT /ORDER uploaded on 03.10.2018
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