Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010024802019 Presented on 02-03-2019
Registered on 03-04-2019
Decided on 21-12-2023
Duration 04Y: 09M: 19D
Exhibit 10
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 460 OF 2019
M/s. Chetana Book Depot, ]
a partnership firm, (Now known as ]
Chetana Publications (India) LLP, ]
Having its registered office at 4th Floor, ]
‘B’ Wing, Building ‘E’, Trade Link, Kamla ]
City, Above Bombay Canteen, Lower Parel, ]
Mumbai – 400 013. ]...Plaintiffs
VERSUS
1. Thirumala Nursery & Primary School ]
San Karapuram Main Road, ]
Odlyanthal Bus Stop, Marur, ]
Kallakurichi-643586. Tamilnadu. ]
2. Mr. D.Parthsarthi, adult, age not known ]
C/o. Thirumala Nursery & Primary School ]
San Karapuram Main Road, ]
Odlyanthal Bus Stop, Marur, ]
Kallakurichi-643586. Tamilnadu. ]...Defendants
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Appearance :
Ld. Advocate Mr. Sudhakar G. Lakhani for the plaintiffs.
None for the defendants (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 21-12-2023
J U D G M E N T
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.2,62,478/-. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is a limited liability partnership firm (LLP)
registered under the Indian Companies Act. Defendant No.1 is a
School and defendant No.2 is a Trustee of defendant No.1.
3. According to the plaintiff, pursuant to the orders placed by
the defendants for supply of educational books, they sold, supplied and
delivered it to the defendants as per defendants’ requirement during
the period from May, 2017 and June 2017 for an amount of
Rs.4,11,105/-. According to the plaintiff, it has raised the invoice
i.e.1) Invoice bearing No.5440.01 dated 11-05-2017 for Rs.2,68,530/-,
2) Invoice bearing No.6642.01 dated 15-05-2017 for Rs.1,35,675/-
and 3) Invoice bearing No.14981.01 dated 30-06-2017 for Rs.6,900/-.
The invoices provide that interest @ Rs.18% p.a. would be charged, if
payment is made after 30 days from the date of the invoices. The
plaintiff further states that the defendants have made payment of an
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aggregate amount of Rs.1,50,000/- by RTGS/in cash from time to time.
The defendants have also returned goods for an amount of Rs.59,556/-
and therefore, total outstanding of due amount Rs.2,01,549/-. In spite
of repeated requests and demands by the plaintiffs from time to time,
the defendants failed to make payment of the balance amount of
Rs.2,01,549/-. Therefore, plaintiff issued a demand notice dated
29-12-2018 through their advocate, calling upon defendants to make
payment of the amount of Rs.2,57,806/- together with further interest
Rs.60,929/- due thereon. The said notice was sent by RPAD and the
same is received by the defendants. Hence, the present suit.
4. The defendants were served with the writ of suit
summons. The plaintiff has filed affidavit of service at Exh.2. Despite
service, the defendants have not caused their appearance, Hence, the
suit proceeded ex-parte against them by the order dated 21-10-2022.
5. In support of claim, the plaintiff filed its affidavit of claim
of Shaji John, the constituted attorney of the plaintiff at Exh.3 and
reiterated the contention made in the plaint and prayed for the decree
for Rs.2,62,478/- along with future interest at the rate of 18% p.a. on
Rs.2,01,549/-. The plaintiff has filed and relied upon the following
documents.
Sr.
No. Exhibit No. Particulars
1 Exh.5 Office copy of Invoice bearing No.5440.01 dated
11-05-2017 for Rs.2,68,530/-
2 Exh.6 Office copy of Invoice bearing No.6642.01 dated
15-05-2017 for Rs.1,35,675/-
3 Exh.7 Office copy of Invoice bearing No.14981.01 dated
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30-06-2017 for Rs.6,900/-.
4 Exh.8 Office copy of notice dated 29-12-2018 from
plaintiff’s advocate to defendants along with postal
acknowledgments
6. To decide the present suit, following points arose for my
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr. No. Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.2,62,478/-,
from the defendants?
If yes, at what rate of interest?
-Partly yes-
Entitled to Rs.2,01,549/-
with interest at the rate of
Rs.9% p.a. from 02-03-2019
till the date of passing the
decree and then @ Rs.6%
p.a. from the date of the
decree till its full realization.
2. What order and decree? As per final order.
R E A S O N S
As to Points No.1 & 2:
7. The plaintiff has filed its claim affidavit in support of
the case set out in the plaint at Exh.3 and also placed on record
some documents as referred to above. Evidence on affidavit placed
on record by the plaintiff supports to its case that the defendants
had placed an orders time to time with the plaintiff for purchasing
the goods, and in accordance with those orders, the plaintiff
supplied the goods to the defendants and the plaintiff had raised the
invoices. It appears also from the evidence of the plaintiff and the
documents placed on record that there were transactions, and
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accordingly the plaintiff had raised the invoices for the total amount
of Rs.4,11,105/-. The defendants have made part payment of
Rs.1,50,000/- and credit of Rs.59,556/- was given and the goods for
this amount were returned by the defendants and as such balance
outstanding amount was Rs.2,01,549/-. It is also found that the
plaintiff had issued the legal notice dated 29-12-2018 through the
advocate and it is duly served on the defendants. Despite of service
of the said notice and calling upon the defendants to clear off the
outstanding dues, the defendants not paid amount. Evidence of the
plaintiff remained unrebutted and unchallenged. Therefore, there is
no reason to disbelieve the evidence of the plaintiff particularly
when it is supported by the documents. Furthermore, in view of
provision of Rule 2 (3), order XXXVII of CPC, owing to failure of the
defendants to appear, it needs to be presumed that the defendants
admit the contents and the allegations contained in the plaint.
Therefore, I hold that the plaintiff has proved that it is entitled to
recover the amount of Rs.2,01,549/- which is the balance
outstanding amount.
8. It may be seen that the plaintiff has claimed the interest
at the rate of Rs.18% p.a. on the principal amount i.e. on the
amount of Rs.2,01,549/-. However, it is important to note that
there appears no agreement to pay the interest on the outstanding
amount. Mere note on invoice in respect granting interest at a
particular rate cannot be termed as a agreed condition and such a
condition can not be said to have binding effect on the defendants.
Therefore, I hold that the plaintiff is not entitled to any interest till
filing the suit. But the transaction between the plaintiff and the
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defendants was of the commercial in nature and therefore, because
of making default by the defendants despite calling upon them to
pay the outstanding amount, I am of the view that the plaintiff can
be made entitled and is entitled to the interest. However, the
interest claimed by the plaintiff appears to be excessive, and
therefore, I hold that the plaintiff is entitled to the interest at the
rate of Rs.9% p.a. from the date of filing of the suit i.e. from
02-03-2019 till passing the decree, and then @ Rs.6% p.a. from the
date of decree till its full realization, and accordingly I answer
point
No.1. In the result, in an answer to
point No.2, I proceed to pass the
following order.
O R D E R
1] The Summary suit No.460 of 2019 is partly decreed with costs.
2] Both the defendants are held jointly and severally liable to pay
to the plaintiff the decretal amount.
3] The defendants shall pay the amount of Rs.2,01,549/- (Rupees
Two Lakhs, One Thousand, Five Hundreds and Forty Nine only)
to the plaintiff along with interest at the rate of Rs.9% p.a. from
02-03-2019 till the date of passing the decree and then @ Rs.6%
p.a. from the date of the decree till its full realization.
4] The plaintiff is entitled to get refund 2/3rd of the court fees
amount be paid by it.
5] The decree shall be drawn accordingly.
( K. P. Shrikhande )
Mumbai Judge, City Civil Court, Gr. Mumbai.
Date :-21-12-2023 Court Room No.61
Dictated on : 21-12-2023
Corrected & Signed on : 22-12-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26-08-2023 at 4.00p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
21-12-2023
JUDGMENT/ORDER signed by P. O. on 22-12-2023
JUDGMENT/ORDER uploaded on 26-12-2023
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