Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 1117/2021
Lodged on : 20.02.2020
Admitted on : 23.07.2021
Decided on : 11.07.2022
Duration : Y M D
2 4 21
COMMERCIAL SUIT NO. 1117 of 2021
CNR NO. : MHCC010022072020
Exh.41
Strata Exim Pvt. Ltd., a Company
incorporated under the provisions
of the Companies Act, 1956 having
its address at Unit No. 1104,
11th floor, Lodha Supremus,
Worli Naka, Mumbai – 400 018. ...Plaintiff
Versus
Manish Goutam, Adult, Indian
Inhabitant, Proprietor of Manish
Fabrics having his address at
Maheshwari Market, Muradpur,
Patna – 80004. . ….Defendant
Appearance:
Adv. Mr. Rutash Jadhav for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 11th JULY 2022
-- 1 of 8 --
2 Judgment in Commercial Suit No. 1117/2021
J U D G M E N T
(Delivered on : 11.07.2022)
The plaintiff has filed this suit for recovery of the amount of
Rs.4,35,195/ plus interest of Rs. 2,05,788/ from the defendants.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a company incorporated under the
provisions of the Companies Act,1956. The defendant is a proprietor of
Manish Fabrics. The plaintiff submits that pursuant to the orders placed
by the defendant upon the plaintiff, the plaintiff company has sold,
supplied and delivered to the defendant fabrics and have raised the
following invoices upon the defendant.
Invoice
Number
Invoice
Date
Invoice
Amount (Rs.)
Invoice
Amount Due
1718020403 25.11.2017 Rs.42,383/ Rs.33,000/
1718020410 28.11.2017 Rs.41,791/ Rs.41,791/
1718020411 28.11.2017 Rs.34,361/ Rs.34,361/
1718020426 04.12.2017 Rs.35,985/ Rs.35,985/
1718020538 31.01.2018 Rs.46,482/ Rs.46,482/
1718020539 01.02.2018 Rs.45,249/ Rs.45,249/
1718020540 02.02.2018 Rs.49,040/ Rs.49,040/
1718020541 03.02.2018 Rs.49,929/ Rs.49,929/
1718020562 05.02.2018 Rs.49,516/ Rs.49,516/
1718020563 06.02.2018 Rs.49,842/ Rs.49,842/
Rs.4,44,578/ Rs.4,35,195/
3. The defendant has received the original invoices and goods
in good condition. The defendant has made a part payment of
Rs.9,383/. The defendant has failed and neglected to pay the
outstanding amount. Therefore, the plaintiff issued legal notice to the
defendant on 04.03.2019 and called upon the defendant to pay the
-- 2 of 8 --
3 Judgment in Commercial Suit No. 1117/2021
outstanding dues. The defendant has not replied the notice nor pay the
outstanding dues. According to the plaintiff, the principal sum of
Rs. 4,35,195/ is due and payable by the defendant towards the goods
sold, supplied and delivered to the defendant and a sum of Rs.
2,05,788/ is due and payable by the defendant as interest on
outstanding amount till 15.02.2020. Hence, the plaintiff filed the
present suit for recovery of an amount of Rs. 4,35,195/ plus interest of
Rs. 2,05,788/ and further interest from the defendant.
4. The Writ of Summons was issued to the defendant through
RPAD and it was duly served as per Affidavit of Service. The defendant
failed to appear before the Court. Hence, the suit was proceeded ex
parte against defendant.
5. In order to prove the claim on behalf of the plaintiff
company, Mr. Gaurav Kataruka, is examined at Exhibit 3. The plaintiff
also placed on record the documentary evidence i.e. Exhibit 5 to 34 are
the invoices, Exh.35 is Advocate's legal notice dated 04.03.2019, Exh.37
is Tracking Report, Exh.38 is the printout of snap shop of part payment
made, Exh.39 is printout of ledger statement and Exh.40 is evidence
closing pursis filed by Advocate for the plaintiff.
6. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether the plaintiff proves that
principal sum of Rs 4,35,195/ is
due and payable by the defendant
towards the goods sold, supplied
In the affirmative.
-- 3 of 8 --
4 Judgment in Commercial Suit No. 1117/2021
and delivered to the defendant and
a sum of Rs. 2,05,788/ is due and
payable by the defendant as interest
on outstanding amount till
15.02.2020?
2) Whether the plaintiff company is
entitled to recover an amount of
Rs.6,40,983 / from the defendant?
If yes, at what rate of interest ?
In the affirmative.
At the rate of Rs.12% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
7. Heard Learned Advocate Mr. Rutash Jadhav for the Plaintiff
at length.
As to point nos. 1 to 3
8. It is the case of the plaintiff company that the defendant
approached to the plaintiff company and he placed orders of fabrics.
Accordingly, the plaintiff sold, supplied and delivered to the defendant
fabrics. The defendant has raised the invoices. The defendant has made
part payment of Rs.9,383/. However, he has not paid the remaining
amount. Therefore, the plaintiff sent notice to the defendant and called
him to pay the outstanding amount. According to the plaintiff, total
amount of Rs.6,40,983/ is outstanding from the defendant. In this
case, the summons was duly served to the defendant, but the defendant
failed to appear before the Court. The defendant has not filed any
Written Statement. It appears that the averments made in the plaint
were not denied or disputed by the defendant by filling the Written
Statement. In other words, the averments made in the plaint is deemed
-- 4 of 8 --
5 Judgment in Commercial Suit No. 1117/2021
to be admitted by the defendant.
9. The documents produced on record by the plaintiff shows
that the defendant received the goods i.e. fabrics. The first transaction
was made on 25.11.2017. Further it reveals that part payment is made
of Rs. 9,383/. It further reveals from the record that the transaction
took place on 25.11.2017 and other dates. The notice of demand was
issued to the defendant on 04.03.2019 as per Exh.35. The suit is filed
on 20.02.2020, as such the plaintiff’s claim is in well within limitation.
10. In support of the pleadings, the plaintiff also filed on record
the documentary evidence at Exhibit 5 to 39. The plaintiff company also
examined Director of the plaintiff company namely Mr.Gaurav Kataruka
at Exhibit 3. He has reiterated the contents of the plaint in his Affidavit.
He also deposed that the plaintiff company has supplied and delivered
the goods i.e. fabric to the defendant and defendant has raised their
invoices. The defendant made part payment. The plaintiff further
deposed that in spite of repeated demands, the defendant has not paid
the outstanding amount. According to plaintiff, the principal sum of
Rs.3,82,292/ and interest amount of Rs.2,05,788/ is due from him.
The defendant has failed and neglected to pay the due amount.
Therefore, the plaintiff sent notice to the defendant to make repayment
of the due amount. According to the plaintiff, an amount of
Rs.6,40,983/ is outstanding from the defendant. This oral evidence of
the plaintiff is not subjected to cross examination. The defendant failed
to conduct the cross examination of the plaintiff. Therefore, the oral
evidence adduced by the plaintiff remained unchallenged. Therefore, I
have no reason to disbelieve the version of the plaintiff's witness no. 1.
11. The oral evidence of the plaintiff company is also supported
by documentary evidence at Exh.5 to 39. The copy of invoicescum
-- 5 of 8 --
6 Judgment in Commercial Suit No. 1117/2021
delivery challan and transport receipts at Exh.5 to 34 shows that the
goods mentioned in the invoices were delivered to the defendant. The
copy of notice at Exh.35 shows that the notice was issued to the
defendant and he was called to pay the outstanding amount. The notice
was duly served to the defendant. The defendant has not filed any reply
to the said notice. The aforesaid documentary evidence adduced by the
plaintiff company was not challenged by the defendant. These
documents clearly shows that on the request of the defendant, the
plaintiff company has supplied goods to the defendant. No counter
evidence is adduced by the defendant. Therefore, inference can be
drawn that an amount of Rs.6,40,983/ is outstanding from the
defendant. The plaintiff by adducing oral and documentary evidence
sufficiently proved that an amount of Rs. 6,40,983/ (including interest)
is outstanding from the defendant.
12. The plaintiff has claimed principal amount of Rs.4,35,195/
and interest of Rs.2,05,788/ on 15.02.2020. The plaintiff has proved
that an amount of Rs.4,35,195/ is due from the defendant by way of
principal amount. The defendant has not repaid the amount of the
goods to the plaintiff. Therefore, the plaintiff suffered the loss.
Therefore, he is entitled to claim an amount of Rs.2,05,788/ by way of
interest from the defendant.
13. The plaintiff has claimed interest at the rate of 24% per
annum from the date of suit. There is no agreement between the parties
regarding rate of interest. In my view, the interest at the rate of 12%
per annum will be just and proper, considering the transaction between
the parties. Therefore, the plaintiff company is entitled to claim an
amount of Rs.6,40,983/ along with interest at the rate of 1 2% per
annum from the date of filling of the suit. In the light of the above
-- 6 of 8 --
7 Judgment in Commercial Suit No. 1117/2021
discussion, I record my finding as to points no. 1 in the affirmative and
point no. 2 accordingly. Hence, I pass the following order:
ORDER
1) Commercial Suit No. 1117 of 2021 is decreed with costs.
2) The defendant is directed to pay an amount of
Rs.6,40,983/ (Rs. Six Lacs Forty Thousand Nine
Hundred and Eighty Three Only) to the plaintiff company
within three months from the date of decree.
3) The defendant is further directed to pay interest at the
rate of 12% per annum on the principal amount of
Rs.4,35,195/ from the date of the suit till realization.
4) Defendant shall bear the costs of the suit.
5) Court fee be refunded to the plaintiff as per rule.
6) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 11.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 11.07.2022
Typed on : 11.07.2022
-- 7 of 8 --
8 Judgment in Commercial Suit No. 1117/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12.07.2022 5.20 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
11.07.2022
Judgment/order signed by P.O on 12.07.2022
Judgment/order uploaded on 12.07.2022
-- 8 of 8 --