Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :27.02.2020
Registered On :23.10.2020
Decided on :04.01.2022
Duration : Y-01/M-10/D-07
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 407 OF 2020
CNR NO.- MHCC01-002514-2020
Exhibit- 07
Chetana Publications Indian LLP
having their office at 4th Floor,
B-Wing, Building-E, Trade Link Kamala City,
above Bombay Canteen
Lower Parel, Mumbai- 400 013.
Through its legal officer
Mr. Shaji John
M.No. 9869669654 ... Plaintiff
V/s.
1. Mr. Syed Hadi Intemas Husani Jafri
(President ) Foster English High School
Roshan Gate, Arif Colony,
Aurangabad – 431 001.
2. Mr. Masarat Batool Jafri
(Secretary) Foster English High School
Roshan Gate, Arif Colony,
Aurangabad – 431 001.
3. Foster English High School
Roshan Gate, Arif Colony,
Aurangabad – 431 001.
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4.Mr. Syed Hadi Intemas Husani Jafri
Mr. Masarat Batool Jafri
Nizamiya Colony, Near Mubarak Masjid,
Roshan Gate, Arif Colony,
Aurangabad – 431 001. ... Defendants
Appearance:-
Ms. Hetal Vakil Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 04/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is carrying on business as a Educational Publisher in
the name and style as ‘Chetana Publications India LLP’. Pursuant to
defendants oral purchase order, plaintiff sold and delivered goods as per
defendants specifications which were received and acknowledged by the
defendant without any protest for quality and quantity till date. The
plaintiff in due course of business raised invoices and sold and delivered
goods to the defendants totally to the sum of Rs.1,66,711.20ps.
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3. The Invoices for Rs.1,66,711.20ps to that effect has been raised
accordingly by the plaintiff. The defendant received the invoices as well
as goods covered there under. The defendants made part payment by
cash and credit note was raised upon different dates. The amount of
Rs.84,318/- remained to be paid alongwith interest. The defendants
neglected and failed to make payment of said amount. Hence, the
advocates letter dtd. 11.11.2019 was sent to the defendants. However,
even after receipt of letter they avoided to comply with the requisition
thereof. The plaintiff averred that the defendants are liable jointly and
severally to pay the outstanding amount with interest.
4. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.1,13,432.47ps/- and further interest
on the principal amount of Rs.84,318/- at the rate of 18% p.a to the
plaintiff from the date of suit till its realization. Hence, this suit.
5. The suit summons were duly served on the defendants but
they failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
6. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff is entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
Amount of
Rs.1,13,432.47ps/-
with interest
@ 18% per annum
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of interest? on the principal sum.
2. What order and decree? As per final order.
REASONS
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.06 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Office copy of Power of Attorney
dtd. 23.6.2010
Exh. 6/1
2 Original Copy of Purchase orders
No. 5569
Exh. 6/2
3 Original Copy of Purchase Order
No. 5567
Exh.6/3
4 Original Copy of Purchase Order
No. 5563
Exh.6/4
5. Xerox Copy of Lorry Receipt dtd.
10.8.2018
Exh. 6/5
6 Xerox Copy of Lorry Receipt dtd.
18.8.2018
Exh. 6/6
7 Office Copy of Invoice bearing No.
18/05413 dtd. 17/05/2018
Exh. 6/7
8 Office Copy of Invoice bearing No.
18/05414 dtd. 17/05/2018
Exh. 6/8
9 Office Copy of Invoice bearing No.
18/05415 dtd. 17/05/2018
Exh. 6/9
10 Office Copy of Invoice bearing No.
18/08146 dtd. 25.5.2018
Exh.6/10
11 Office Copy of Invoice bearing No.
18/08213 dtd. 25.5.2018
Exh.6/11
12 Office Copy of Invoice bearing No.
18/010930 dtd.15.6.2018
Exh.6/12
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Sr.
No.
Description of documents Exhibits
13 Office Copy of Invoice bearing No.
18/025230 dtd. 13.8.2018
Exh.6/13
14 Office Copy of Invoice bearing No.
18/026229 dtd. 20.8.2018
Exh.6/14
15 Office Copy of sales ledger dtd.
1.3.2018 to 31.3.2020
Exh.6/15
16 Office copy of original notice Exh. 6/16 – Colly
17 Original Postal Receipt Exh. 6/17
18 Copy of Postal Track Reports Exh. 6/18 -colly
AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendants. The documents produced on record by the
plaintiff shows that the defendants received the goods covered with
the invoices below Exh.06. The part payment of Rs.50,000/- with credit
notes is also made. Further, it reveals from the record that the said
transaction took place from dtd.17.05.2018 to 20.08.2018, part
payment of Rs.50000/- has been made on dtd. 06.07.2018, the
notice/letter of demand was issued to the defendants on
dtd.11.11.2019 and the suit is filed on 27.02.2020. As such, the
plaintiff’s claim in the suit is well within limitation.
9. All the documents produced by the plaintiff at list Exhibit-
06 goes to establish that plaintiff has supplied goods to the defendants
as per their instructions and the defendants failed to repay the balance
amount of Rs.84,318/-, though received the letter of demand from the
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plaintiff. Said amount is not repaid either by the defendants. Therefore
all defendants are liable jointly and severally to pay the outstanding
amount of Rs.84,318/- with interest to the plaintiff. According to the
plaintiff the amount of Rs.1,13,432.47ps/- is calculated by them as the
outstanding amount by adding the interest at the rate of 18% p.a. In
this background, I have arrived at the conclusion that the plaintiff is
entitled to recover sum of Rs.1,13,432.47ps/-from the defendants
jointly and severally.
10. According to the plaintiff the outstanding dues against the
defendants is Rs.1,13,432.47ps/- and said amount is calculated
alongwith interest at the rate of 18% p.a till the date of filing of the suit.
So the total outstanding amount is Rs.1,13,432.47ps/-. Apart from
said amount which is due against the defendant on the date of filing of
the suit, the plaintiff has claimed interest at the rate of 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 contract existing between the parties as to
the rate of interest which shall be levied. As per the agreed terms
mentioned on the invoice below Exh.06, defendants are liable to pay
the interest at the rate of 18% p.a. Therefore, I hold, the 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.84,318/-. Hence, point
no.1 is answered in the affirmative.
AS TO POINT NO.2:
11. In view of discussion and finding on point no.1, it is held
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that the plaintiff is entitled to recover Rs.1,13,432.47ps/- from the
defendants jointly and severally with interest at the rate of 18% per
annum on the principal sum of Rs.84,318/- from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendants. Hence, in answered to point no.2, I proceed to
pass the following order:
ORDER
1. The defendants shall pay Rs.1,13,432.47ps/- (Rs. One
Lakh Thirteen Thousand Four Hundred Thirty Two
and Forty Seven paise Only) to the plaintiff jointly
and severally, with interest at the rate of 18% per
annum on the principal sum of Rs.84,318/- from the
date of filing of the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :04/01/2022 Gr. Bombay
Dictated on : 04/01/2022
Typed on : 10.1.2022
Signed on : 10.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/01/2022 02.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
4.1.2022
JUDGMENT/ORDER signed by
P.O.on
10.1.2022
JUDGMENT/ORDER uploaded on 10.1.2022
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