Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 12.02.2018
Registered on 05.03.2018
Decided on 14.11.2018
Duration Ys Ms Ds
08 09
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.289 OF 2018
Advanced Fittings Pvt.Ltd., a company
incorporated under the provisions of The
Companies Act,1956, having its registered
office at 67, Ankush Apartment, 401/4th
Floor, Khetwadi, Mumbai400 004. ...Plaintiffs.
V/s.
1. M/s. V.R. Associates, a proprietary firm,
carrying on business from No.525, Jayaram
Nagar, ICF Employees Colony, Ayapakkam,
Chennai600 077, Tamil Nadu, India.
2. Mr.Sekar Raja Rajaganesh, aged not
known, adult of Indian Inhabitant,
propreitor of Defendant No.1, carrying on
business from No.525, Jayaram Nagar, ICF
Employees Colony, Ayapakkam, Chennai
600 077, Tamil Nadu, India. ...Defendants.
Appearances:
Ld. Adv.Mr.Prashant Chande for plaintiff.
None for defendants. Hence, suit proceeded exparte against
defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 14th November,2018
MHCC01-002182-2018
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J U D G M E N T
(Exparte)
This is a suit for recovery of Rs.22,44,707/ with interest.
2. Plaintiff came with a case that, plaintiff is a company
incorporated under the provisions of the Companies Act,1956 having its
registered office at the address mentioned in the title clause. Defendant
No.1 is a proprietary firm and defendant No.2 its proprietor.
3. Plaintiff submitted that, defendant placed orders to plaintiff for
supply of stainless steel seamless fittings, 3rd MTO, Carbon steel
seamless fitting 3rd MTO etc. of various sized, quality and quantity and
it was agreed that payment has to be made with in 90 days and on
default interest @ 24% will be charged. As per orders and instructions
plaintiff sold, supplied and delivered the goods of Rs.17,99,335/ to
defendant. Defendants have accepted the goods without any objection
about quality, quantity and price. Accordingly, plaintiff raised invoices
of the goods received by defendants. Defendants never raised any
objection about the invoice. Defendants also made part payment of
Rs.Four lacs on 30.05.2017 by NEFT towards the goods supplied.
Defendants have rejected certain goods and accordingly, plaintiff gave
debit note of Rs.49,460/. But defendants have never returned the
rejected goods to plaintiff. Therefore, adjusting the debit note price,
the defendants were still due and payable Rs.13,49,875/ to plaintiff.
But defendants did not pay the said outstanding balance amount.
Thereafter, there were exchanged of email/communication between
plaintiff and defendant between 05.04.2007 to 10.11.2017 about
payment of outstanding dues. However, defendant failed and neglected
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to clear the dues. Plaintiff submitted that, defendant issued bearing
NO.000660 dt.25.05.2017 for Rs.4,00,000/ against outstanding
amount. But said cheques was dishonoured and returned with remarks
“funds insufficient” when presented in the bank.
4. Plaintiff submitted that, defendants were to furnish H form in
respect of the invoices of the goods supplied by plaintiff. But they failed
to submit such H form. Therefore, they were liable to pay the Central
Tax amounting to Rs.2,73,952/. Defendant also not submitted to
plaintiff proof of Export copy attested by Excise Department for both
Forms CT1 of invoices. Therefore, defendants are liable to pay Central
Excise Duty amounting to Rs.1,94,602/. Plaintiff also incurred packing
and submitted invoice bearing No.819A dt.12.12.2016 for Rs.43,376/.
Defendants also confirmed the said amount. But in spite of repeated
requests and demand, defendants failed and neglected to pay the
balance outstanding amount. Therefore, plaintiff issued notice
dt.12.09.2017 called upon defendants to pay Rs.13,96,251/ as
outstanding amount due and payable against the goods sold and
supplied to defendants under various invoices and Rs.2,73,952/ and
Rs.1,94,602/ against the Central Taxes and Rs.46,376/ as packing
charges. However, defendants neither replied the said notice nor paid
the amount claimed by plaintiffs. Hence, plaintiff came before this
Court against defendants for recovery of outstanding due amount.
5. Writ of summons came to be issued against defendants. It came
to be served and accordingly, plaintiff filed service affidavit at Exh.5. In
spite of service none appeared on behalf of defendants. Hence, suit
proceeded exparte against defendants. Thereafter, learned counsel for
defendants appeared and requested to set aside exparte order. But
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defendants have not taken any concrete steps to proceed in the matter.
Therefore, matter proceed exparte against defendants.
6. In order to prove its claim plaintiff filed affidavit of claim of
Mr.Dilip Pukhraj at Exh.6 with compilation of documents at Exh7 and
proved the following documents :
Ex.08 (colly)
Ex.08 (1).
Ex.08 (2).
Ex.08 (3).
Ex.08 (4).
Ex.09(colly).
Ex.09(1).
Ex.09(2).
Ex.09(3).
Ex.09(4).
Ex.09(5).
Ex.09(6).
Ex.09(7).
Ex.09(8).
Ex.10(colly)
Ex.10(1).
Ex.10(2).
Ex.11.
D.sr.no.1, dt. 28/09/16, invoice bearing no.M1029 for
Rs.3,05,405/
D.sr.no.2, dt. 28/09/16, invoice bearing no.M1030 for
Rs.12,51,409/
D.sr.no.3, dt. 06/12/16, invoice bearing no.816 for
Rs.72,644/
D.sr.no.4, dt. 12/12/16, invoice bearing no.819 for
Rs.27,523/
D.sr.no.5, dt. 10/01/17, invoice bearing no.816 for
Rs.1,42,354/
D.sr.no.6, dt. 05/04/17, print out of the email send by
V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.7, dt. 10/05/17, print out of the email send by
V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.8, dt. 18/08/2017, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.9, dt. 22/09/17, print out of the email send by
V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.10, dt. 02/10/17, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.11, dt. 28/10/17, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.12, dt. 09/11/17, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.13, dt. 09/11/17, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.14, dt. 10/11/17, print out of the email send
by V. R. Associates to Advanced Fitting Pvt. Ltd.
D.sr.no.15, dt.25/05/17, Dishonor cheque bearing
no.000660 for Rs.4,00,000/
D.sr.no.16, dt. 30/05/17, Memo.
D.sr.no.17, dt. 12/07/17, Memo.
D.sr.no.18, Dt. 02/08/16, Invoice no. 782 for
Rs.30,09,043.76/ for FormH.
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Ex.12.
Ex.13.
Ex.14.
Ex.15(colly).
Ex.15(1&2)
Ex.16.
D.sr.no.19, dt. 28/09/16, Intimation of provisional
debt for Rs.38,176/ alongwith its CT1Form bearing
serial no.2.
D.sr.no.20, Dt. 28/09/16, Intimation of provisional
debt for Rs.1,56,426/ alongwith its CT1Form bearing
serial no.3.
D.sr.no.21, dt. 12/12/16, invoice no.819A for
Rs.46,376/
D.sr.no.22, copy of notice.
D.sr.no.23, copies of the A. D. Cards.
D.sr.no.24, Particulars of claim.
7. Heard learned Advocate for plaintiff. Perused the record and
submissions.
8. On perusal of various invoices it is clear that, plaintiff supplied
stainless steel seamless fittings, 3rd MTO, Carbon steel seamless fitting
3rd MTO etc. of various sized, quality and quantity to defendants and
defendants have duly accepted the same without any demure.
Defendants also made payment of Rs.Four Lacs as part payment to
plaintiff and issued cheque of Rs.Four Lacs as part payment against the
goods received. But said cheque was dishonoured. Hence, this proved
there there were transaction between plaintiff and defendant and it is
proved that, plaintiff supplied the goods to defendant as per their order.
9. In spite of service of writ of summons none appeared on behalf of
defendants. Therefore, the testimony of plaintiffs' witness remains
unchallenged and unrebutted. The documents proved by plaintiff also
uncontroverted. In such circumstances, the unchallenged testimony of
plaintiff needs to be accepted. There is nothing brought on record
which shows that, plaintiff had not supplied the goods as per orders
placed by defendant from time to time or defendants made the payment
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of outstanding amount to plaintiff. Hence, claim of plaintiff needs to be
accepted.
10. As per terms and conditions of invoices, defendant shall pay
interest @ 24 % per annum on outstanding amount. Therefore, being a
commercial transaction defendant is liable to pay the interest as agreed.
In spite of repeated requests and demands; and issuance of demand
notice defendant failed and neglected to pay the outstanding amount.
In such circumstances, it is proper to direct defendant to bear the costs
of this suit and costs of plaintiff. Hence, suit deserves to be decreed
with costs and I proceed to pass the following order :
O R D E R
1. Suit is decreed with costs.
2. Defendant nos. 1 and 2 jointly and severally do pay
Rs.22,44,707/ along with interest @ 24 percent per
annum on principal amount of Rs.13,49,875/ to
plaintiff from the date of filing of this suit till
realization of entire decreetal amount.
3. Defendant nos. 1 and 2 jointly and severally do bear
their own costs with costs of plaintiff.
4. Decree be drawn up accordingly.
5. The 2/3rd Court fee refund voucher, as per rule, be
issued in favour of plaintiff, if prayed.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:14/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 14.11.2018
Transcribed on : 17.11.2018
Signed on : 17.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.11.18 at 3.40 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 14.11.18
Judgment/order signed by P.O. on 17.11.18
Judgment/order uploaded on 17.11.18
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