Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 19/21. 1 Ex-parte Judgment (Exh.47).
MHCC010025482020
Presented on : 28-02-2020
Registered on : 25-01-2021
Decided on : 12-11-2021
Duration : 1 years, 8 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 19 OF 2021
Exh.47.
M/s. Central Oil Industries (Registered) )
Through: Mr. Nimish Thacker )
Aged: 37, Occ: Business )
A Registered Partnership Firm )
duly registered with the Registrar of Firms )
under the Indian Partnership Act, 1932 )
carrying on business at )
408, Anant Deep Chamber, 273277, )
Narshinatha Street, Masjid, )
Mumbai400009 )...Plaintiff
Versus
1) Teksol Oil & Specialities, )
A firm carrying on business at )
Nilkant Flat No. 301, Hindustan Colony, )
Amaravati Road, Nagpure, Nagpur, )
Maharashtra, 440033 )
2) Prashant Sawarkar, )
Age: Not known, Occ: Business )
Nilkant Flat No. 301, Hindustan Colony, )
Amaravati Road, Nagpure, Nagpur, )
Maharashtra, 440033 )
3) Sonali Prashant Sawarkar, )
Age: Not known, Occ: Business )
Nilkant Flat No. 301, Hindustan Colony, )
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Comm.Suit No. 19/21. 2 Ex-parte Judgment (Exh.47).
Amaravati Road, Nagpure, Nagpur, )
Maharashtra, 440033 )
4) Shailaja Chandrashekhar Godghate, )
Age: Not known, Occ: Business )
Nilkant Flat No. 301, Hindustan Colony, )
Amaravati Road, Nagpure, Nagpur, )
Maharashtra, 440033 )
5) Pravin Nilkanthrao Sawarkar, )
Age: Not known, Occ: Business )
402, Himalaya Galaxy 1, )
Beside University Campus, Kothari Layout, )
Amaravati Road, Nagpur, )
Maharashtra, 440033 )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 12th NOVEMBER, 2021.
Mr. Jitendra Ahuja, Advocate for the plaintiff.
Defendants no.1 to 3 and 5 – Without written statement.
Defendant no.4 – Exparte.
JUDGMENT (EXPARTE)
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a registered partnership firm having
registered with the Registrar of Firms, Bombay engaged in the business
of manufacturing of lubricants and specialities. The plaintiff has also
pleaded details of his three excise and MVAT registration numbers.
Defendant no.1 is also a partnership firm represented by his partners
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Comm.Suit No. 19/21. 3 Ex-parte Judgment (Exh.47).
defendants no.2 to 5. The defendants have obtained GST registration
number. Defendant no.1 had also obtained Excise Central Code
Number as pleaded in the plaint. The plaintiff has paid central excise
tax of Rs.1,63,296/ and MVAT of Rs.1,43,595/ under the invoices in
the matter. The defendants have claimed / taken advantage of the
rebate of statutory taxes paid by the plaintiff for the transactions of the
goods sold under the invoices to the defendants which is the subject
matter of the suit.
3. The plaintiff had sold the goods to defendant no.1 as per
order placed by defendant no.2 for the period between October, 2012 to
September, 2016. The plaintiff had smooth transactions with the
defendants during October, 2012 to March, 2014. On 04/11/2014,
defendant no.2 proposed to the plaintiff for agreeing to period of credit
to 45 days instead of 30 days and beyond the said period, interest
would be payable by the defendants at the rate of 13.75% p.a. instead
of 21% p.a. The parties agreed on the credit period of 45 days, but
interest on delayed payment was kept at the rate of 21% p.a.
4. The plaintiff used to forego the contractual interest in the
invoices and settled with the interest amount paid by the defendants on
late payment in order to maintain cordial relations. The defendants had
ordered goods during May, 2016 to September, 2016. The said goods
were collected from the plaintiff by the transporter engaged by the
defendants and details used to be mentioned in the invoices and
forwarded to their warehouses at Taloja, Wadi Nagpur and Wadi
Nagpur c/o M/s. Aditi Petroleum as per their instructions.
5. Then, the defendants asked the plaintiff to prepare the
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Comm.Suit No. 19/21. 4 Ex-parte Judgment (Exh.47).
invoices as per the templates sent by them on 20/03/2016 and to send
the goods directly to their customers. The invoices (Exh.G, H, L and M)
are pertaining to the goods sold to the defendants, but delivery of the
goods was directly made to the customers of the defendants. Such type
of delivery was made to the defendants' customer namely Quadros
Motorcorp Co. on their request as per invoices (Exh.F as per template e
mailed by defendant no.2 dated 20/03/2016) and (Exh.J and K as per
template emailed by defendant no.2 dated 13/05/2016).
6. After giving details of delivery of sold goods as per
directions of the defendants, the plaintiff pleaded that defendant no.2
admitted liability of Rs.10,29,292/ in respect of invoices (Exh.G, H, J
and M) as per email dated 27/01/2017. When Nimish Thacker –
partner of the plaintiff reminded defendant no.2 about missing
reference of invoice Exh.F, defendant no.2 did not dispute the
transaction in his email dated 27/01/2017. The defendants did not
dispute quality and quantity of the goods and they did not return the
same. The defendants had sent confirmation of the outstanding amount
vide letters dated 10/02/2017, 14/08/2017 and 01/08/2018. As the
defendants did not pay the outstanding amount, the plaintiff sent letter
dated 25/09/2018. Defendant no.2 had given frivolous reply as per
letter dated 10/10/2018. Then, the plaintiff sent a demand notice
through his advocate dated 19/11/2018 to the defendants, but
advocate of defendants no.3 to 5 relied upon contents in the letter
dated 10/10/2018 and shown ignorance in their reply notice / letter
dated 10/12/2018. Then, advocate for the plaintiff sent a detailed
rejoinder dated 04/01/2019 to the defendants, but they chose not to
pay the consideration. The defendants had made part payment for
invoice no.51 (Exh.F) on 24/10/2016. The plaintiff has applied for pre
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Comm.Suit No. 19/21. 5 Ex-parte Judgment (Exh.47).
institution mediation on 21/08/2019. The suit is filed on 28/02/2020.
By pleading these details, the plaintiff pleaded that the suit is within
limitation. The plaintiff has given the details of the claim amount in
Exh.Z and prayed that the suit be decreed for the amount of
Rs.21,90,516.38 with interest at the rate of 21% p.a. or any other rate
as the Court deems fit and proper with costs.
7. Defendants no.1 to 3 and 5 had appeared through their
advocate and filed vakalatnama (Exh.2) on 23/02/2021, but they failed
to file written statement. Therefore, no written statement order is
passed against them in roznama dated 13/08/2021. Defendant no.4
was duly served with writ of summons as per affidavit of service
(Exh.3), but he failed to appear and oppose the claim of the plaintiff.
Therefore, I passed the exparte order against him in roznama dated
13/08/2021.
8. PW 1 Nimish deposed on evidence affidavit (Exh.4) and
proved documents filed with list of documents (Exh.5). Proved
documents are at Exh.6 to 45. The plaintiff closed evidence vide pursis
(Exh.46). Heard learned counsel Shri Jitendra Ahuja for the plaintiff.
9. 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 :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.21,90,516.38 ? In the Affirmative.
2. Whether the plaintiff proves that he is
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Comm.Suit No. 19/21. 6 Ex-parte Judgment (Exh.47).
entitled to recover interest on the
amount of Rs.21,90,516.38 from the
date of the suit till realization ? If yes, at
what rate of interest ? Partly in the
Affirmative.
@ 12% p.a. on
principal amount of
Rs.12,52,589/.
3. What order as to costs ? As per final order.
4. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
10. PW 1 Nimish has deposed that the plaintiff as well as
defendant no.1 are partnership firms. He further stated that defendants
no.2 to 5 are partners of defendant no.1. He has given account of the
transactions between the parties as per pleadings in the plaint and it is
not required to be reproduced. In support of his case, he has also
proved documents Exh.6 to 45. He has proved registration certificate of
the plaintiff firm (Exh.6). GST details of defendant no.1 (Exh.7) shows
that defendants no.2 to 5 are its partners.
11. Email of defendant no.2 dated 04/11/2014 (Exh.8) states
about request to extend credit period with 45 days and to reduce
interest at the rate of 13.75%. The plaintiff has not conceded to reduce
interest rate. Invoices (Exh.18 to 24) are issued to defendant no.1
during 02/05/2016 to 30/09/2016. Lorry receipts (Exh.25 and 26)
proves delivery of goods. Learned counsel Shri Jitendra Ahuja
explained in the course of his argument that email dated 26/04/2016
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Comm.Suit No. 19/21. 7 Ex-parte Judgment (Exh.47).
issued by the defendant (Exh.16) is relating to purchase order placed by
the defendants and accordingly, goods are sold and supplied as per
invoices (Exh.18,19,20 and 22). He further referred to order placed by
the defendants as per SMS dated 03/09/2016 (Exh.17) and supply of
the goods as per invoices (Exh.23 and 24) accordingly. He further
pointed out email dated 20/03/2016 by defendant no.2 (Exh.27) as
per which he had forwarded draft invoice to the plaintiff for issuance.
12. The defendants had made part payment of Rs.13,519/ in
respect of invoice (Exh.18) on 24/10/2016 and remaining amount is
outstanding. So far as remaining invoices (Exh.19 to 24) are
concerned, no payment is made by the defendants. The plaintiff has
claimed outstanding amount of Rs.12,52,589/ regarding invoices
(Exh.18 to 24) with interest at the rate of 21% on the basis of the
second term / condition in these invoices as explained in particulars of
claim (Exh.Z) filed with the plaint.
13. Defendant no.2 has given material admission regarding
outstanding amount of Rs.6,56,970/ in his email dated 27/01/2017
(Exh.31). Email (Exh.31) further reveals total of invoices (Exh.23 and
24) as Rs.3,72,322/ and states about total outstanding amount of
Rs.10,29,292/. In response to email (Exh.31), the plaintiff had sent e
mail to defendant no.2 (Exh.32) informing missing reference of invoice
no.0051 dated 02/05/2016 (Exh.18). The plaintiff had made
communication with the defendants regarding outstanding amounts as
per letters (Exh.33, 34, 35, 36), but the defendants failed to make
payment. The defendants have denied the liability to pay the amount
claimed by the plaintiff in their reply notice dated 25/09/2018
(Exh.37). It is obvious that contents in Exh.37 are inconsistent with
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Comm.Suit No. 19/21. 8 Ex-parte Judgment (Exh.47).
admission of defendant no.2 in email (Exh.31). Even otherwise, the
plaintiff has replied the said notice (Exh.37) by sending notices
(Exh.38, 39 and 40).
14. In short, the plaintiff has not only adduced oral evidence
but also produced and proved documents supporting to oral evidence.
The defendants have given material admission regarding liability in e
mail (Exh.31). Details regarding rate of interest at the bottom of
invoices (Ex.18 to 24) allows the plaintiff to claim interest on
outstanding amount at the rate of 21% from due date for payment.
Therefore, the plaintiff is entitled to recover the amount claimed in the
prayer clause in the plaint.
15. So far as rate of pendente lite and postdecree interest is
concerned, Hon'ble Supreme Court has observed in para 55(8) in the
case of Central Bank of India V/s. Ravindra and Others (2002) 1
SCC 367 as under :
“(8) Award of interest pendente lite and postdecree
is discretionary with the court as it is essentially
governed by Section 34 CPC dehors the contract
between the parties. In a given case if the court finds
that in the principal sum adjudged on the date of the
suit the component of interest is disproportionate
with the component of the principal sum actually
advanced the court may exercise its discretion in
awarding interest pendente lite and postdecree
interest at a lower rate or may even decline awarding
such interest. The discretion shall be exercised fairly,
judiciously and for reasons and not in an arbitrary
or fanciful manner.”
16. Observations in the case of Central Bank of India (cited
supra) states about discretion of the court in granting pendente lite and
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Comm.Suit No. 19/21. 9 Ex-parte Judgment (Exh.47).
postdecree interest. Wording of proviso to Section 34 of the CPC
confers discretionary right upon the court to grant interest exceeding
6% and up to the extent of contractual rate of interest. There is only
one negative condition preventing the court from granting interest
beyond the contractual rate of interest. Such negative condition in the
proviso to Section 34 of the CPC cannot be interpreted as granting of
interest at the contractual rate is mandatory. In the light of clear legal
position, the court can exercise the discretion while granting pendente
lite and postdecree interest within limits laid down in Section 34 of the
CPC.
17. In the light of above discussion on legal aspect pertaining
to rate of interest, the plaintiff is entitled to get interest at the rate of
21% p.a. as mentioned in the invoices (Exh.18 to 24) till the date of
filing of the suit. Therefore, the plaintiff is entitled to get the amount
prayed in the plaint. With regard to pendente lite and future interest, it
is necessary to exercise discretion because interest rate mentioned in
the invoice is exorbitant and it is beyond normal range of interest
imposed in commercial transactions. Accordingly, interest at the rate of
12% p.a. is going to be awarded on the principal amount from the date
of the suit till the date of its realization. The principal amount is
Rs.12,52,589/ as per letter (Exh.33) and particulars of claim (Exh.Z
annexed with the plaint). Costs of the suit is liable to be imposed on
the defendants. In the light of above discussion, I record my finding as
to point no.1 in the affirmative. I record finding as to point no.2 partly
in the affirmative with interest rate as discussed above on the principal
amount. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 19/2021 is partly decreed.
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Comm.Suit No. 19/21. 10 Ex-parte Judgment (Exh.47).
2. The defendants are directed to pay amount of
Rs.21,90,516.38 (Rupees Twentyone Lakhs Ninety
Thousand Five Hundred Sixteen and Paise Thirtyeight
Only) to the plaintiff within three months from the date of
decree.
3. The defendants are further directed to pay interest at the
rate of 12% p.a. on principal amount of Rs.12,52,589/
from the date of the suit till realization.
4. The defendants are jointly and severally liable to pay the
decretal amount to the plaintiff.
5. The defendants shall bear the costs of the suit.
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 12/11/2021. Mumbai.
1. Dictated online on : 12/11/2021.
2. Signed on : 12/11/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 19/21. 11 Ex-parte Judgment (Exh.47).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/11/2021. 4.18 p.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 12/11/2021.
Judgment/Order signed by P.O. on 12/11/2021.
Judgment/Order uploaded on 12/11/2021.
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