Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010026192020 Presented on 29022020
Registered on 22022021
Decided on 03102023
Duration 03Y: 7M: 4D
Exhibit 08
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 225 OF 2021
Mukesh Dalichand Chandan ]
son of Dalichand R. Chandan, aged 45 ]
years, Occupation : business, carrying on ]
business under name and style of ]
“M.M.Metals” at 27 Gurjar Building, ]
Office No.1, Sadashiv Cross Lane, ]
Girgaum, Mumbai400 004. ]
Mobile Nbo.: 98201 24705 ]
Email: sles @ mmmetals.com.in ]...Plaintiff
V/s.
1. M/s. Shree Yash Engineers ]
A firm ]
2. Shankar Bhimrao Somwanshi ]
full name: not known, adult, age: ]
not known, Occupation: business ]
3. Jagdish Bhimrao Somwanshi ]
full name: not known, adult, age: ]
not known, Occupation: business ]
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4. Aditi Shankar Somwanshi ]
full name: not known, adult, age: ]
not known, Occupation: business ]
5. Rasika Jagdish Somwanshi ]
full name: not known, adult, age: ]
not known, Occupation: business ]
All the defendants commonly at M/s. ]
Shree Yash Engineers, Gat No. 1609, ]
Shelar Vasti, Dehu Alandi Road, ]
Chikhali, Pune412114. ( Maharashtra) ]
Mobile No. 07875555930. ]...Defendants
Appearance :
Ld. Adv. K. S. Tripathi for the plaintiff.
Defendants absent (Exparte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 03/10/2023.
JUDGMENT
(Passed on 03.10.2023)
This is a suit for recovery of the amount of Rs.2,99,999/ filed under
order 37, Rule 2 of the CPC. In view of the failure of the defendant to
apply for the leave to defend the suit, the plaintiff has prayed for the
decree in view of the provision of Order 37, Rule6(a) of the CPC.
2] So in view of the submission of the counsel for the
plaintiff and having regard to the case set out by the plaintiff,
following points arose for the consideration to which my findings are
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recorded against each of them for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.2,99,999/
from the defendants?
Yes
2 Whether the plaintiff is entitled to
further interest on the said
amount?
If yes, at what rate?
At the rate of Rs.9% p.a. from
the date of filing the suit till the
date of decree and thereafter
@ Rs.6% p.a. till its full
relization.
2. What order and decree? As per final order.
R E A S O N S
As to points No.1 to 3:
3] Before considering the entitlement of the plaintiff to the
degree, it is necessary to record the events that happened during the
pendency of the suit and few facts of the plaintiff’s case.
4] After receipt of the writ of summons, the defendant failed
to appear and therefore, the suit was proceeded exparte by the order
dated 15/12/2021 and the plaintiff filed the claim affidavit and the
documents. When the matter was posted for exparte judgment, the
defendant took out the notice of motion No.1121/2022 for setting
aside the exparte order. The said notice of motion was allowed by the
order dated 20/06/2022 subject to costs of Rs.3,000/ and thereafter
summons for judgment No.206/2022 was served on him. The
defendant failed to reply to the summons for judgment and therefore,
the suit proceeded without reply to summons for judgment by the
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order dated 01/12/2022. On this backdrop, the counsel for the
plaintiff prayed for the decree.
5] As per the case of the plaintiff, he is the proprietor of the
firm “M. M. Chandan” and engaged in the business of stockist and
dealer in stainless steels, pipes, plates, round, coils materials and all
ferrous and nonferrous metals. Defendant No.1 is a partnership firm
and defendants No.2 to 5 are the partners of the said firm. The
defendants are engaged in the business of manufacturing and
supplying of heavy structural components. On receiving the purchase
orders from the defendants, the plaintiff sold, dispatched and delivered
“S. S. Coil/plate” materials to the defendants during the period from
05/06/2014 to 14/07/2014 for the total amount of Rs.10,24,253/
and accordingly invoices were raised and those invoices are:
Invoice No.0075 dated 05/06/2014 for Rs.8,12,509/
Invoice No.0080 dated 12/06/2014 for Rs.73,830/
Invoice No.127 dated 14/07/2014 for Rs.1,37,914/
6] During the period from 11/03/2015 to 02/03/2017, the
plaintiff received the part payment of Rs.7,00,000/ and therefore,
amount of Rs.3,24,253/ remained due and outstanding against the
defendants. According to the plaintiff, he has maintained the ledger
account of the defendants. The plaintiff has placed on record photo
copies of the ledger account along with the copies of the invoices.
7] The plaintiff’s case suggests that meanwhile the
defendants had issued the three cheques for the amount of
Rs.10,24,253/; however, those cheques were dishonoured. Entries of
those cheques are reflected in the ledger account. So it appears that by
issuing the cheques in favour of the plaintiff, the defendant had
accepted the liability of payment of the amount in respect of the
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invoices raised by the plaintiff.
8] It is also appearing that the plaintiff had issued the notice
dated 22/02/2020 and had called upon the defendants to pay the
balance amount of Rs.3,24,253/ with the interest at the rate of
Rs.30% per annum from 03/03/2017, a date of last payment of
Rs.50,000/ made on 02/03/2017, till the payment of entire due
amount; however, the said notice was not complied with by the
defendants. On this background, the plaintiff has filed the suit.
According to the plaintiff, due and payable amount comes to
Rs.3,24,253/; however, the plaintiff has restricted his claim to the
amount of Rs.2,99,999/ to bring the suit within the pecuniary
jurisdiction of this court and prayed for the decree for the amount of
Rs.2,99,999/ with the further interest at the rate of Rs.18% per
annum from the date of filing the suit.
9] It may be seen that the plaintiff has also placed on record
the evidence on affidavit and the documents in support of the claim.
Claim of the plaintiff is well supported by the documents. Subrule 6
(a) of Rule 3 of Order 37 of CPC provides that if the defendant has not
applied for the leave to defend, the plaintiff shall be entitled to the
judgment forthwith. In view of this provision, there is no need to
make the threadbare discussion in respect of the merits of the
plaintiff’s case. Furthermore, claim of the plaintiff for the amount of
Rs.3,24,253/ is well supported by the documents placed on record.
Therefore, I hold that there was outstanding amount of Rs.3,24,253/
against the defendants. Because of restricting the claim by the
plaintiff, I hold that the plaintiff is entitled to recover the amount of
Rs.2,99,999/. Consequently, the plaintiff is entitled to the leave to
sign to judgment.
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10] It is contended by the counsel for the plaintiff that the
plaintiff is entitled to further interest at the rate of Rs.18% per annum
on the decreetal amount. However, taking into consideration nature of
the transaction between the plaintiff and defendant as commercial
transaction and having regard to the provision of section 34 of the
CPC, the plaintiff can be made entitled to the further simple interest at
the rate of Rs.9% per annum from the date of filing the suit till the
date of the decree and thereafter at the rate of Rs.6 % per annum from
the date of decree its full realization and therefore, I answer point
No.1 accordingly. The goods/materials were supplied to defendant
No.1, which is the firm, and defendant No.2 to 5 are the partners of
the said firm and therefore, all the defendants are held jointly and
severally liable to pay the decreetal amount. In the result, I answer to
point No.2, I proceed to pass the following order.
O R D E R
1] Summons for Judgment No.206/2022 is allowed.
2] The suit is decreed with costs.
3] The defendants shall pay to the plaintiff the amount of
Rs.2,99,999/ (Rupees Two Lakhs, Ninety Nine Thousands, Nine
Hundreds and Ninety Nine only).
4] The plaintiff is entitled to simple interest on the amount of
Rs.2,99,999/ at the rate of Rs.9 % p.a. from the date of filing
the suit till the date of decree, and thereafter at the rate of
Rs.6% per annum till its full realization.
5] All the defendants are jointly and severally liable to pay the
decreetal amount and further interest thereon.
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6] The plaintiff is entitled to get refund 2/3rd court fees paid by it.
7] The decree shall be drawn accordingly.
8] Summons for Judgment No.206/2022 is disposed off.
(K. P. Shrikhande)
Date: 03/10/2023 Judge, City Civil Court Gr. Mumbai.
Mumbai Court Room No.61
Dictated on: 03102023
Corrected & signed on: 04102023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04102023 at 3.30 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
03102023
JUDGMENT/ORDER signed by P. O. on 04102023
JUDGMENT/ORDER uploaded on 04102023
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