Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010025292020
Filed on :27.02.2020
Registered On :01.02.2021
Decided on :05.02.2022
Duration : Y-00/M-09/D-08
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 53 OF 2021
CNR NO.- MHCC01-002529-2020
Exhibit- 08
Chetana Publications (India) 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- 400 013. ... Plaintiff
V/s.
1. Bal- Sanskar English Medium School
(BSES01)
Near Sai Lani Baba Durga
Malegaon Road, Karanjgavahan
District- Nashik, Pincode-423 105.
2. Rishi Prasad Seva Sanstha,
Near Sai Lani Baba Durga
Malegaon Road, Karanjgavahan
District- Nashik, Pincode-423 105.
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3. Kiran Shinde
Age not known
Near Sai Lani Baba Durga
Malegaon Road, Karanjgavahan
District- Nashik, Pincode-423 105.
Kirna Shinde
Near Churchgate, Nampur Road,
Malegaon Camp, District- Nashik
Pin Code- 423 105. ... Defendants
Appearance:-
Mr. Vinayak Salokhe 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 : 05/02/2022
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 limited liability partnership firm registered
under the Limited Liability Partnership Act, 2008 and involved in the
publishing of educational books and as such carrying out the business
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and dealing in sale of book all over India. The defendant no.1 is a
school and defendant no.2 is a trust. Defendant no. 3 is the owner as
well as principal of defendant nos. 1 and 2. Since the year 2018 the
defendants approached the plaintiffs for supply of educational books as
per their orders and pursuant to said orders, plaintiff had supplied
required books regularly. In the year 2018 also the books were supplied
as per the requirement of the defendants and the plaintiff raised various
invoices aggregating Rs.2,78,814/-. The defendants have made part
payment also. However, the defendants measurably failed to pay the
entire amount of purchase despite of repeated requests made by the
plaintiff. The balance confirmation report is placed on record. The
defendants failed to pay the outstanding amount hence the notice/
letter were issued on 30.4.2019 and 20.8.2019. The outstanding
amount against the defendants is Rs.2,06,848/-. It is said that after part
payment the outstanding amount remains to Rs.1,60,972/- and after
calculating the interest, it comes to Rs.2,06,848/-. Hence, the
advocates notice dtd. 27.1.2020 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 to pay the
outstanding amount with interest.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are liable to
pay a sum of Rs.2,06,848/- with interest on the principal amount of
Rs.1,60,972/- at the rate of 18% p.a to the plaintiff from the date of suit
till its realization. Hence, this suit.
4. The suit summons were duly served on the defendants but
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they failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
5. 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
of interest?
Amount of
Rs.2,06,848/-with
interest
@ 18% per annum
on the principal sum.
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 True copy of the Power of Attorney Exh.7/1
2 Original Office Copy of Purchase
order
Exh.7/2
3 Original invoice No. 13504.01
dated 28.6.2018 for Rs.71,280/-
Exh. 7/3
4 Original invoice No. 13506.01
dated 28.6.2018 for Rs.47,160/-
Exh. 7/4
5 Original invoice No. 13512.012
dated 28.6.2018 for Rs.77,880/-
Exh. 7/5
6 Original invoice No. 13536.01
dated 28.6.2018 for Rs.41,748/-
Exh. 7/6
7 Original invoice No. 13504.02
dated 20.7.2018 for Rs.12,990/-
Exh. 7/7
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Sr.
No.
Description of documents Exhibits
8 Original invoice No. 13506.02
dated 20.7.2018 for Rs.6,720/-
Exh. 7/8
9 Original invoice No. 13516.01
dated 11.8.2018 for Rs.9,750/-
Exh. 7/9
10 Original invoice No. 13536.02
dated 27.8.2018 for Rs.11,250/-
Exh. 7/10
11 Balance confirmation report dated
08.04.2019 by defendants.
Exh. 7/11
12 Defendants by its letter dated
30.4.2019 and 20.8.2019 for
making final payment
Exh. 7/12
13 Office copy of notice dated
18.4.2019 sent bybRAPD from
plaintiffs advocate to the
defendants.
Exh. 7/13
14 Copy of the statement of accounts
for the period from 01.04.2018 to
31.03.2021
Exh. 7/14
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendant. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendant. Claim affidavit filed below Exh.06. The
documents produced on record by the plaintiff shows that the
defendants received the goods covered with the invoices below Exh.07.
Further, it reveals from the record that the said transaction took place
in the year-2018 and the notice/letter of demand was issued to the
defendants on dtd. 27.1.2020 and the suit is filed on 27.2.2020. As
such, the plaintiff’s claim in the suit is well within limitation.
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8. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has supplied goods to the defendants
as per their instructions and the defendant failed to repay the balance
amount of Rs.1,60,972/-, though received the letter of demand from
the plaintiff. Said amount is not repaid by the defendants. Therefore,
defendants are liable to pay the outstanding amount of Rs.1,60,972/-
with interest to the plaintiff. According to the plaintiff the amount of
Rs.2,06,848/- is calculated by them as the outstanding amount by
adding the interest at the rate of 18% p.a. and other charges. In this
background, I have arrived at the conclusion that the plaintiff is entitled
to recover sum of Rs.2,06,848/- from the defendants.
9. According to the plaintiff the outstanding dues against the
defendants are Rs.2,06,848/- and said amount is calculated alongwith
interest at the rate of 18% p.a and charges till the date of filing of the
suit. So the total outstanding amount is Rs.2,06,848/-. Apart from said
amount which is due against the defendants 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.07, 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.1,60,972/- . Hence, point no.1 is answered
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in the affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.2,06,848/- from the
defendants with interest at the rate of 18% per annum on the principal
sum of Rs.1,60,972/- 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 answer to point no.2, I proceed to pass the
following order:
ORDER
1. The defendants shall pay Rs.2,06,848/-(Rs. Two Lacs
Six Thousand Eighty Hundred Forty Eight only) to the
plaintiff, with interest at the rate of 18% per annum
on the principal sum of Rs.1,60,972/- 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 :05/02/2022 Gr. Bombay
Dictated on : 05/02/2022
Typed on : 05/02/2022
Signed on : 05/02/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/02/2022 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
05/02/2022
JUDGMENT/ORDER signed by
P.O.on
05/02/2022
JUDGMENT/ORDER uploaded on 05/02/2022
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