Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 15/19. 1 Ex-parte Judgment (Exh.20).
MHCC010025152019
Presented on : 05-03-2019
Registered on : 04-05-2019
Decided on : 20-12-2021
Duration : 2 years, 9 months, 15 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 15 OF 2019
Exh.20.
Mr. Haresh N. Chawda, )
India Inhabitant, aged 49 )
Occ. Business, having address )
at Ahmed Building, 2nd floor, )
R. No. 15, Patha Bapurao Marg, )
Opp. Gokul Hotel, )
Mumbai 400 004 )...Plaintiff
Versus
1. M/s. Rupji Constructions, )
C36, Shree Ram Industrial Estate, )
3rd floor, G.D. Ambedkar Marg, )
Wadala, Mumbai 400031 )
2. Mr. Madhukar Magasham Rupji, )
Partner of M/s Rupji Constructions, )
Aged 78 years, Occu. Business, )
Residing at 203, AWing, 2 nd Floor, )
Om Residency, Opp. Bhoiwada, Court, )
Mumbai – 400 012 )
3. Mr. Tejal Madhukar Rupji, )
Partner of M/s Rupji Constructions, )
Aged 46 years, Occu. Business, )
Residing at 203, AWing, 2 nd Floor, )
Om Residency, Opp. Bhoiwada, Court, )
Mumbai – 400 012 )
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Comm.Suit No. 15/19. 2 Ex-parte Judgment (Exh.20).
Defendant nos.2 and 3 both are presently )
residing at )
Abhay Cooperative Housing Society Ltd., )
Plot No. 81, B404, Pipeline Road, )
Tilak Nagar, Above Nobel Chemist, )
Chembur, Mumbai400089 )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 20th DECEMBER, 2021.
Shri Suraj Gupte, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is running a business of civil contractor
under the name and style of 'Haresh Chawda Civil Contractors'.
Defendant no.1 is a partnership firm and defendants no.2 and 3 are the
partners of defendant no.1. The defendants are builders and
developers. The defendant approached the plaintiff for civil / labour
work at their ongoing construction sites at various places in Mumbai
and suburban area. The plaintiff had given the labour work quotations
for fixing tiling etc. on 18/04/2010, 05/12/2012 and 01/05/2014.
After going through the quotations, the defendants offered the tiling
work and general work to the plaintiff. Accordingly, the plaintiff
carried out the work at various sites mentioned in para 6 of the plaint.
Then, he raised bills of Rs.61,62,253.81 till 2015. The plaintiff
persuaded the defendant for payment, but in vain. He approached the
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Comm.Suit No. 15/19. 3 Ex-parte Judgment (Exh.20).
police station to make complaint of the defendant. API asked the
plaintiff to file a civil suit. Then, advocate for the plaintiff sent demand
notice dated 29/01/2019 to the defendants for payment of outstanding
dues with interest at the rate of 18% plus GST. The packets containing
notice returned with remark 'Intimation' dated 21/01/2019. Hence, the
plaintiff filed the suit for recovery of outstanding amount of
Rs.61,62,253.81 with interest at the rate of 18% p.a. from 01/09/2015
to 31/01/2019 with service tax / GST at 18% p.a. He also claimed
further interest at the rate of 18% p.a. with costs of the suit. He further
made prayer for sale of movable and immovable assets of the defendant
and realization of the amount as per order of the Court and for payment
of net sale proceeds to him.
3. The defendants are duly served with writ of summons as
per affidavit of service (Exh.9A) through paper publication, but they
failed to appear and oppose the claim of the plaintiff. Therefore, I
passed the exparte order against them on 22/10/2021.
4. PW 1 Haresh Chawda, the plaintiff deposed on evidence
affidavit (Exh.9) and proved documents filed with list of documents
(Exh.10). Proved documents are at Exh.11 to 17. The plaintiff closed
evidence vide pursis (Exh.18). Heard learned counsel Suraj Gupte for
the plaintiff. I have also gone through written notes of arguments
(Exh.19) filed by learned counsel Shri Suraj Gupte for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
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Comm.Suit No. 15/19. 4 Ex-parte Judgment (Exh.20).
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.61,62,253.81 with interest at the
rate of 18% p.a. from 01/09/2015 to
31/01/2019 with service tax / GST at
18% p.a. from the defendant ? In the Affirmative
with variation in
interest i.e. @ 12%
p.a.
2. Does the plaintiff prove that he is
entitled to interest on principal amount
Rs.61,62,253.81 from the defendant ?
If yes, at what rate of interest ? In the Affirmative.
@ 12% p.a.
3. Does the plaintiff prove that he is
entitled to sell of movable and
immovable assets of the defendant as
per Exh.F annexed with the plaint and
to get net sale proceeds ? In the Negative.
4. What order as to costs ? As per final order.
5. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 4 :
6. PW 1 Haresh has specifically stated that he carried out the
work as per request of the defendant. He has given details of civil work
of fixing tiles done at various sites as mentioned in para 6 of his
evidence affidavit. He had raised invoices (Exh.12 colly.) from time to
time, but the defendants were negligent to pay the dues. He proved
letters dated 27/11/2017, 24/04/2018, 02/05/2018 and 10/07/2018
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Comm.Suit No. 15/19. 5 Ex-parte Judgment (Exh.20).
sent to Sr.P.I., EOW (Exh.13 colly.). He also proved a demand notice
dated 29/10/2019 (Exh.14). The defendants did not claim the said
notice. All invoices/bills are received by the defendants, but they did
not raise any dispute either by approaching the plaintiff or by appearing
before this Court. Therefore, unchallenged evidence of the plaintiff
coupled with documents on record is liable to be considered. The
plaintiff has proved liability of the defendant to pay the outstanding
amount claimed in the prayer clause of the plaint. As no rate of interest
is mentioned in any of the bills, there is lack of material to demonstrate
contractual rate of interest. Interest claimed by the plaintiff is
exorbitant and it warrants reasonable reduction in it. Interest at the
rate of 12% p.a. appears to be reasonable. Therefore, the interest is
being granted from 01/09/2015 till realization of the principal amount.
So far as prayer regarding sale of the defendants' property is concerned,
it is the part touching to the process of execution of the decree and it is
purely governed by Order 21 of the CPC. Therefore, no such relief is
required to be granted while deciding the suit on merit. Costs of the
suit is liable to be imposed on the defendants. Accordingly, I record my
findings as to point no.1 and 2 in the affirmative with modification in
rate of interest as discussed above and as to point no.3 in the negative.
Hence, I pass the following order :
ORDER
1. Commercial Suit No. 15/2019 is partly decreed.
2. The defendants are directed to pay amount of
Rs.61,62,253.81 (Rupees Sixtyone Lakhs Sixtytwo
Thousand Two Hundred Fiftythree and Paise Eightyone
Only) with interest at the rate of 12% p.a. from
01/09/2015 till the date of realization within three months
from the date of decree.
3. The defendants are further directed to pay amount of taxes
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Comm.Suit No. 15/19. 6 Ex-parte Judgment (Exh.20).
in respect of outstanding amount of Rs.61,62,253.81 to the
plaintiff for further payment to the government as per
rules.
4. The defendants shall bear the costs of the suit.
5. The defendants are jointly and severally liable to pay
decretal amount to the plaintiff.
6. Court fees shall be refunded to the plaintiff as per rules.
7. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 20/12/2021. Mumbai.
1. Dictated online on : 20/12/2021.
2. Signed on : 20/12/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/12/2021. 11.08 a.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 20/12/2021.
Judgment/Order signed by P.O. on 20/12/2021.
Judgment/Order uploaded on 21/12/2021.
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