Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010025282020
Presented on : 27-02-2020
Registered on : 01-02-2021
Decided on : 07-09-2022
Duration : 02Y :06M:11 D
EXHIBIT- 21
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 52 OF 2021
Chetana Publication (I) LLP
A Partnership Firm, Through their
Constituted Attorney Mr. Rajesh Kamble
4th Floor, Trade link, E-Wing, “B” Block,
Kamala City, Above Bombay Canteen,
Lower Parel, Mumbai-400013.
...Plaintiff
Versus
1. Kranti Jyoti Savitraibai Fule English
School (KJSS01) At Po: Kasdha, Tal:
Bhandara District:Bhandara-441924.
2. Kranti Jyoti Savitribai Santhan, At
Po: Kasdha, Tal: Bhandara District:
Bhandara -441924.
3. Mr Yuvraj Sham Kumar Principal)
Age:Not known,Kranti Jyoti Savitribai
Fule English School (KJSS01),
At Po: Kasdha, Tal:Bhandara District:
Bhandara -441924.
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4. Mr.Lehandas Shamkumar (Secretary)
Age: Not known, Kranti Jyoti Savitribai
Fule English School (KJSS01)
At Po: Kasdha, Tal: Bhandara District:
Bhandara -441924.
...Defendants
Appearance :
Ld. advocate Mr. Vinayak. R. Salokhe for plaintiff.
None for defendant (exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 07/09/2022
Judgment
This is the summary suit filed under Rule 2 of Order XXXVII
of Code of Civil Procedure, 1908 (“CPC” for short) for recovery of
principal amount of Rs.94,416/- with interest at the rate of 18% p.a.
Plaintiff’s case-
2. Plaintiff is involved in the publishing and selling of
educational books. The defendant No.1 is a School. The defendant No.
2 is a trust and defendant No.3 is the Principal and defendant No. 4 is
the Secretary and its responsible person for the day to day affairs.
3. Plaintiff claims that it has supplied books to the defendants as
per the purchase order and had raised invoices of aggregate amount of
Rs.2,77,729 against the defendants. The books were duly supplied
through Sunshine Logistic. Defendants paid an amount of Rs.42,000/-
as a part payment. The amount of Rs.94,416/- was outstanding.
Defendants by letter dated 25.07.2019 promised to clear the
outstanding amount till the month of January, 2020. However, the
same was not repaid.
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4. Plaintiff issued demand notice through advocate on
27.01.2020. The same was duly served on the defendants. However, no
amount was paid. Therefore, plaintiff has filed the present suit.
5. Though the defendants were duly served, they failed to
appear and therefore, this Court by Order dated 17.02.2022 directed to
proceed exparte.
6. Plaintiff has also filed affidavit-in-chief at Exh.05 whereby he
reiterated its claim. Plaintiff in support of his contention has filed
various documents on record at list Exh.06. Plaintiff has filed following
documents on record.
Sr.
No.
Exhibit
No. Particulars
1 Exh.07 Original office copy of purchase order
2 Exh.08 Original Invoice No.12513.01 dated 25.06.2018
3 Exh.09 Original Invoice No.12515.01 dated 25.06.2018
4 Exh.10 Original Invoice No.12527.01 dated 25.06.2018
5 Exh.11 Original Invoice No.12515.02 dated 06.07.2018
6 Exh.12 Original Invoice No.12513.02 dated 18.07.2018
7 Exh.13 Original Invoice No.12527.02 dated 18.07.2018
8 Exh.14 Original Invoice No.12513.03 dated 21.07.2018
9 Exh.15 Original Invoice No.12515.03 dated 02.08.2018
10 Exh.16 Original Invoice No.12529.01 dated 22.08.2018
11 Exh.17 Copy of defendant letter dated 25.07.2019 addressed
to plaintiff.
12 Exh.18 Office copy of notice dated 27.01.2020 sent by RPAD
from plaintiffs' advocate to the defendants.
13 Exh.19 Copy of the statement of accounts for the period from
01.04.2018 to 16.03.2022
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7. So as to decide the present suit following points arise for my
consideration. I have recorded my findings thereon, for the reasons
provided as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to
recover an amount of Rs.94,416/-
from defendants?
If yes, at what rate interest?
Partly in affirmative. Plaintiff
is entitled to recover an
amount of Rs.94,416/-
from the defendants along
with interest @ 9% p.a. from
the date of filing of the suit
i.e. from 27.02.2020 till
realization of entire amount.
2. What order and decree? Suit is partly decreed as
per final order.
REASONS
8. Sub Rule 3 of Rule 2 of Order XXXVII of CPC provides that in
default of entering the appearance by the defendant, the allegations in
the plaint shall be deemed to be admitted and the plaintiff shall be
entitled to a decree for a sum not exceeding the sum mentioned in the
summons, together with interest and cost. However still it needs to see
that whether plaintiff has adduced sufficient material before this Court
to show its entitlement to decree.
AS TO POINT NO. 1 & 2-
9. The plaintiff has filed claim affidavit at Exh.05 and has
reiterated its claim in the plaint. Plaintiff has also filed the purchase
order dated 08.06.2018 (Exh.07) and original invoices (Exh.08 to 16).
The letter of defendant No.3 addressed to the plaintiff dated
25.07.2019 (Exh.17). The office copy of notice dated 27.01.2020 along
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with postal receipts, postal acknowledgment ( Exh.18) and statement
of account ( Exh.21) are placed on record.
10. Plaintiff has deposed on oath regarding the transaction
between the plaintiff and defendant. The plaintiff has claimed that
defendant has acknowledged liability to pay the amount of Rs.94,416/-
vide letter dated.25.07.2019 9 (Exh.17), but the same is not paid by the
defendant.
11. The purchase order, various invoices as well as
acknowledgment from the defendant No.3 clearly shows that amount of
Rs.94,416/- is due and outstanding for defendant towards the purchase
of the books from the plaintiff. Hence, I hold that plaintiff is entitled to
recover an amount of Rs.94,416/- from the defendants jointly and
severally.
12. So far as claim of interest is concerned, plaintiff has claimed
18% p.a. on the amount due. Plaintiff claims that invoices do bear a
clause of payment of 18% interest on delayed payment. However, there
is no agreement as such in that respect. The invoices being unilateral
document cannot be considered as a document of agreed rate of
interest. Considering the nature of the transaction, I find it fit to award
the interest at the rate of 9% p.a. on the principal amount from the date
of filing of the suit till realization of entire amount. Hence, I answer
point No.1 accordingly.
13. In answer to point no.2, I pass following order.
ORDER
A) Summary Suit No.52 of 2019 is hereby partly decreed with
costs.
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B) Defendants jointly and severally do pay an amount of
Rs.94,416/- to the plaintiff along with interest at the rate of
9% p.a. from the date of filing of the suit i.e. 27.02.20200 till
realization of entire amount.
C) Decree be drawn up accordingly.
D) Plaintiff is entitled for refund of Court fees, as per rules.
Date- 07/09/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 07/09/2022
Transcribed on : 12/09/2022
Signed on :13/09/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13.09.2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07.09.2022
JUDGMENT/ORDER signed by P. O. on 13.09.2022
JUDGMENT/ORDER uploaded on 13.09.2022
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