Final Order 1

Order Details: Order below exhibit
Pdf Text: Judgment 1 Summ. Suit No.767/2017
Filed on : 12.06.2017
Registered on : 06.07.2017
Decided on : 28.02.2020
Duration : Year-02 Month-08 Days-17
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 767 OF 2017
(CNR NO.MHCC01-005635-2017)
Exhibit-23
M/s. M. U. Traders
Address - 196-198, Lala compound,
Gala No. 29-A, Behind Ansari
Kata, Old Air India Road, Kurla West,
Mumbai - 400070.
….Plaintiff
V/s.
M/s. Neelkanteshwara Enterprises
Address - A-203, Shreeji Tower, Opp. Geeta Nagar,
Phase III, Mira Road East,
Dist Thane 401017.
... defendant
SUIT FOR RECOVERY OF RS.19,22,700/-
CORAM : HER HONOUR JUDGE
Smt. SABIHA G. SHAIKH
DATED : 28th February, 2020.
(C.R.No.59)
Appearances:-
Advocate K.H. Giri, for the plaintiff.
Exparte against defendant
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
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Judgment 2 Summ. Suit No.767/2017
The facts of the case are as under :
2. The Plaintiff is a Propriety concern dealing in the business of
buying and selling of scrap material. The defendant is a dealer in scrap
materiel and contractor. The defendant represented plaintiff have
entered into contract M/s. Ceat Bhandup to demolish fired, damaged
structure for its RMS godown at Bhandup and to take away MS Scrap.
The defendant sold the demolition work M/s. Ceat to the plaintiff for
total consideration of Rs.55,00,000/-. The MOU was executed between
the plaintiff and defendant for the same. The said work was done by the
plaintiff It is the case of the defendant that defendant has failed to pay
balance of Rs.13,26,000/- to him for the said work done as per the
MOU. The cheque issued by defendant on 15.10.2014 for
Rs.13,26,000/- has returned dishonored when deposited by plaintiff
with its banker. It is the case of the plaintiff that balance of
Rs.13,26,000/- is due payable by the defendant towards the said goods
pertaining the supply of the said goods. The defendant failed to pay
remaining total amount of Rs.13,26,000/- inspite of various requests
made by the plaintiff. It is the case of the plaintiff that as on the suit
defendant is liable to pay the amount of Rs.13,26,000/- and interest of
Rs.5,96,000/- towards the supply of the said goods. Hence, plaintiff is
constrained to file the suit for recovery of the said amount with interest.
3. The defendants appeared with suit summons. Thereafter
Summons for Judgment was served on the defendant but they have
failed to file there reply to the same. Hence, suit is posted for judgment
as per order XXXVII Rule 6 (a) of Code of Civil Procedure 1908
judgment.
4. The following points arise for my determination and my findings
thereon are as under for the reasons stated there under:-
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Judgment 3 Summ. Suit No.767/2017
Sr.
No.
POINTS FINDINGS.
1. What is due and payable from the
defendants to the plaintiff ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.13,26,000/- with
interest
@ 18% per annum.
2. What order and decree? As per final order.
REASONS
5. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of documents
7 Original of MOU dated 14.07.2014
8 Defendant’s Advocate’s letter dated 01.09.2014
9 Post dated cheque dated 15.10.2014
10 Request letter of the defendant dated 12.10.2014
11 Bank Memo dated 19.11.2014
12 Letter of the defendant dated 19.11.2014
13 Plaintiff’s letter dated 29.11.2014
14 Letter of the defendant dated 10.12.2014
15 Plaintiff’s letter dated 16.12.2014
16 Defendant’s letter dated 21.12.2014
17 Bank Memo dated 27.12.2014
18 Plaintiff’s Advocate’s Notice dated 23.01.2015
19 Reply by defendant’s advocate dated 04.02.2015
20 Notice dated 27.04.2017
21 Postal acknowledgment of Notice dated 27.04.2017
22 Consolidated statement of account of the plaintiff dated
01.01.2014 to 31.12.2014
AS TO POINT NO.1:
The defendant have failed to file the reply to the Summons for
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Judgment 4 Summ. Suit No.767/2017
Judgment. Hence, Summons for Judgment is made absolute.
6. All the documents produced by the plaintiff at list Exhibit-7 to 22
goes to establish that plaintiff has carried out the work of demolition as
per the MOU executed between him and the defendant on 14.07.2014.
The said MOU is at Exhibit-7 The documents further prove that the
amount of Rs.13,26,000/- is due and payable to the plaintiff company
from defendant towards the said work done by the plaintiff as per the
MOU on Exhibit-7. But, defendant failed to pay total amount of
Rs.13,26,000/-. The documents at list Exhibit-7 to 22 go to establish
that defendant is liable to pay Rs.13,26,000/- to the plaintiff on the
date of filing of the suit towards the purchase of goods and therefore
the defendant has avoided to pay the balance amount to the plaintiff. In
this background, it is held that plaintiff is entitled to recover sum of
Rs.13,26,000/- from the defendant.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceed 6% per annum, if the transaction is commercial and
there is no contract pertaining to the same between the parties. In the
present case the transaction is a commercial one and there is express
contract existing between the parties as to the rate of interest of 18%
per annum which shall be levied. Therefore, rate of interest at the rate
of 18% per annum would be just and proper to be awarded on the
principal sum adjudged i.e. amount of Rs.13,26,000/-. Hence, point
no.1 is answered in the affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point no.1, it is held that the
plaintiff is entitled to recover Rs.13,26,000/- from the defendant. The
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Judgment 5 Summ. Suit No.767/2017
plaintiff is entitled to recover amount of Rs.5,96,700/- as interest on the
principal amount. The plaintiff is entitled to recover interest @ 18% p.a.
on principal amount of Rs.13,26,000/- from the date of filing of the suit
till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendant. Hence, in answered to point no.2, I proceed to pass
the following order :
: ORDER:
1. The defendant to pay to the Plaintiff a sum of
Rs.13,26,000/- (Rs. Thirteen Lakhs Twenty Six
Thousand only) alongwith interest at the rate of 18%
per annum from the date of filing of the suit till its
payment and/or relisation. The defendant shall also
pay amount of Rs. 5,96,700/- to the plaintiff as
interest on the principal amount till the date of filing
of the suit.
2. The defendant shall pay costs of the suit to the
plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Summons for Judgment No. 79 of 2019 accordingly
disposed of
5. Decree be drawn accordingly.
(Smt. S. G. Shaikh)
Ad-hoc Judge
City Civil Court,
Date : 28.02.2020 Gr. Bombay
Typed on : 28.02.2020
Described on : 28.02.2020
Signed on : 28.02.2020
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Judgment 6 Summ. Suit No.767/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
(Typist)
28.02.2020 5.15 p.m. Miss. N.T.Kokare
Name of the Judge H.H.J. SABIHA G. SHAIKH.
Ad-hoc Judge.
(Court Room No.59)
Date of pronouncement of Order 28.02.2020
Order signed by P.O. on 28.02.2020
Order uploaded on 28.02.2020
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