Order 1

Order Details: Other
Pdf Text: ..1.. Summary Civil Suit
No.414/2017
MHCC010027252017 Presented on : 14/03/2017
Registered on : 24/03/2017
Decided on : 11/12/2023
Duration : 06Y 08M 29D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.15
SUMMARY CIVIL SUIT NO.414 OF 2017
ALONGWITH
SUMMONS FOR JUDGMENT NO.50 OF 2018
HAZARI TRADING COMPANY
a proprietary firm, through its Sole Proprietor
Mr. Lal Kumar Hazari, having address at Hazari
House, Shop No. 197-201, Dr. Cawasji Hormusji St,
Dhobi Talao, Kalbadevi, Mumbai-400 002.
]
]
]
]
] ..Plaintiff
VERSUS
NIRAJ KAKAD CONSTRUCTIONS
a proprietary firm, through its Sole Proprietor
Niraj Gunvant Kakad, having address at Office No.1
India House, Plot No. 5-F, Tagore Road, Santacruz
(West), Mumbai – 400 054.
]
]
]
]
] ..Defendant
Appearance :-
Mr. Agrawal, learned advocate for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 11/12/2023.
J U D G M E N T
1 This summary suit is filed for recovery of amount,
contending that the plaintiff is a sole proprietary concern, having
business of supplying digital temperature controller, oscilloscope,
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No.414/2017
analyzer network, analyzer spectrum and other articles. The defendant
is also a proprietary concern engaged in the business of construction
and real estate. In pursuant to the order placed by the defendant, the
plaintiff has supplied goods and material on commercial basis to the
defendant and raised invoices. The defendant received the goods
supplied and did not at no point of time raise any grievance or dispute
with regards to the quality of the goods. The defendant, in repayment
of invoice of Rs.15,00,000/-, issued a cheque bearing No.044822 of
Rs.15,00,000/- drawn to the Citibank in favour of the plaintiff
however, on presentation for encashment, the said cheque dishonoured
consequently, the plaintiff has issued notice to the defendant, but in
vain. The defendant paid amount under the invoices, consequently,
plaintiff has filed the instant suit for recovery of amount with interest
at the rate of 18% per annum.
2 In response to the suit summons, the defendant tendered
appearance, thereafter, plaintiff took out summons for judgment which
is served upon the defendant, but failed to file reply within stipulated
period. The defendant thereafter, took out notice of motion for
condonation of delay, allowing to file reply and seeking leave to defend
on 11/04/2019, but did not proceed with the said notice of motion.
Inconsequence of failure on the part of defendant to proceed with the
notice of motion, same came to be dismissed in default as per the order
in roznama dated 25/08/2023. Inconsequence to the dismissal of the
notice of motion in default, the summons for judgment proceeded
without reply and suit proceeded further as if it is ex-parte.
3 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
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documents (Exhibit-09 to 14) under list. Heard learned advocate for
plaintiff.
4 The plaintiff has raised invoice of Rs.15,00,000/- and the
defendant has issued the cheque of Rs.15,00,000/- in favour of
plaintiff, however, the said cheque was returned back and dishonoured
with remark “funds insufficient”. A copy of original invoice, original
letter of the defendant and original cheque are filed on record vide
Exhibit-09, 11 and 12. The issuance of cheque by the defendant in
favour of the plaintiff amounts that the defendant has admitted the
liability to pay the amount under the invoice.
5 In significance to the dishonour of cheque, the plaintiff has
issued notice demanding to pay the amount of invoice under the
cheque. The copy of legal notice is at Exhibit-14. Inconsequence of
failure to respond to the legal notice and to pay the amount
demanded, it appears that the plaintiff has established its claim for
recovery of amount of Rs.15,00,000/-.
6 The omission on the part of the defendant and to proceed
with the suit and to raise defence shows that the defendant has no
good defence to challenge the claim of plaintiff and as per the
provisions of Order XXXVII Rule 2(3) of the Code of Civil Procedure,
plaintiff is entitled for decreed of amount under the invoice.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
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the amount by the defendant. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of dishonour of
cheque i.e. 01/10/2016, till its full realisation.
8 As the defendant has made plaintiff constrained to file the
suit, it is also liable to pay the costs. In the result, I proceed to pass the
following order :-
ORDER
1. Summary Civil Suit No.414/2017, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.15,00,000/- alongwith interest at the rate of 9%
per annum, from the date of dishonour of cheque i.e.
01/10/2016, till its full realisation from the
defendant.
3. Summons for judgment No.50/2018 stands disposed
of accordingly.
4. Court fees, if any, be refunded as per rule.
5. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 11/12/2023 C.R. No.15
Dictated on : 11/12/2023
Transcribed on : 11/12/2023
Signed on : 12/12/2023
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No.414/2017
“Certified to be true and correct copy of the original signed order”.
12/12/2023
at about 04.55 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 11/12/2023
Order signed by Hon'ble Judge on : 12/12/2023
Order uploaded on : 12/12/2023
at about 04.55 p.m.
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