Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. S. C. Suit No.762/2019
MHCC010025762019 Presented on : 05/03/2019
Registered on : 18/03/2019
Decided on : 19/08/2023
Duration : 04Y 05M 18D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.54
S. C. SUIT NO.762 OF 2019
Chetana Book Depot
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.
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] ..Plaintiff
V/s.
1. Mrs. Shital Ajmera (Proprietor)
Sakshi Shoppe, near Shanta Medical,
Godam Gali, Kopargaon – 423601,
District : Ahmednagar.
2. Sakshi Shoppe
Near Shanta Medical, Godam Gali,
Kopargaon-423601, Dist. Ahmednagar.
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] ..Defendant
Appearance :-
Learned Advocate Hetal Vakil for plaintiff.
None for defendants (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 19/08/2023.
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..2.. S. C. Suit No.762/2019
J U D G M E N T
1 The instant suit is filed for recovery of amount, contending
that the plaintiff is a partnership firm having business of books. The
defendants are running Educational Institute. In pursuant to the
purchase order of defendants, plaintiff supplied and delivered the
goods to the defendants as per the specification and mentioned it in
the invoice from time to time. The plaintiff has raised various invoices
after the delivery of goods from time to time and the defendants have
paid the part amount thereto. The plaintiff has supplied goods and
raised invoices from the period 07/04/2016 to 29/08/2016 and
defendants paid the part amount in between 23/12/2016 to
18/01/2017 and after the adjustment of payment by the defendants,
an amount of Rs.1,72,287/- remained due and recoverable from the
defendants. In consequence of failure to pay the remaining amount,
the plaintiff has issued notice which was returned with the remark
“Left”. Therefore, the plaintiff has filed this suit for recovery of due
amount with interest at the rate of 18% per annum.
2 In response to the writ of summons, defendants failed to
appear before the Court, though served with the summons. Therefore,
suit proceeded ex-parte as per the order in
roznama dated
07/11/2019.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
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..3.. S. C. Suit No.762/2019
POINTS FINDINGS
1 Does the plaintiff prove that the
defendants are in due of amount of
Rs.1,72,287/- ?
Affirmative
2 Does the plaintiff prove that he is
entitled to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
documents (Exhibit-06 to Exhibit-52) under list (Exhibit-05). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit-04) alongwith documents as per list (Exhibit-05). On
perusal of invoices it appears that defendants were in due of payment
of Rs.5,10,820/- out of which they made part payment of
Rs.3,38,533/- and have failed to repay the remaining balance amount
of Rs.1,72,287/-. The plaintiff then issued notice on 28/12/2018,
calling upon them to pay the outstanding amount. The plaintiff has
claimed part payment by the defendants and that Rs.1,72,287/- are
due and recoverable from the defendants, thus, there is no reason to
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..4.. S. C. Suit No.762/2019
disbelieve the contention of plaintiff, which remains unchallenged.
Hence, suit deserves to be decreed as per the provisions of Order
XXXVII Rule 2(3) of the Code of Civil Procedure.
6 There is nothing on record to show that the defendants
have paid the outstanding amount. Their absence and omission to
appear before the Court on being served with the writ of summons
shows that they have no substantial defence and have admitted the
claim of plaintiff. Therefore, the plaintiff is entitled for recovery of
amount of Rs.1,72,287/-. The last payment was made on 18/01/2017
and the suit is filed in the year 2019, hence, it is well within limitation.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendants, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendants. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of last payment i.e.
18/01/2017, till its full realisation. In view of above discussions, I
answer point No.1 in affirmative and point Nos.2 and 3 in partly
affirmative.
8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :-
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ORDER
1. S. C. Suit No.762/2019, is hereby partly decreed with
costs.
2. Plaintiff is entitled to recover an amount of
Rs.1,72,287/- alongwith interest at the rate of 9% per
annum, from the date of last payment i.e.
18/01/2017, till its full realisation from the
defendants.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 19/08/2023 C.R. No.15
Dictated on : 19/08/2023
Transcribed on : 21/08/2023
Draft checked on : 21/08/2023
Signed on : 21/08/2023
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“Certified to be true and correct copy of the original signed order”.
22/08/2023
at about 05.14 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 19/08/2023
Order signed by Hon'ble Judge on : 21/08/2023
Order uploaded on : 22/08/2023
at about 05.14 p.m.
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