Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 695/21. 1 Ex-parte Judgment (Exh.21).
MHCC010026502018
Presented on : 21-02-2018
Registered on : 21-07-2018
Decided on : 18-09-2021
Duration : 3 years, 6 months, 25 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 695 OF 2021
Exh.21.
Mercury Airconditioners Private Limited , )
a company governed under Companies Act, 2013 )
having office at Shop No.17, Bombay Gas Lane, )
Peru Chawl Compound, Off. Dr. Ambedkar Road, )
Lalbaug, Mumbai – 400 012 )...Plaintiff
Versus
Mr. Vipul Patel, the sole proprietor )
Of M/s. Maitri Cooling Planet )
Shop No. 4/B2, Jay Jyot Apartment, )
Ratan Nagar, Borivali (E), Mumbai – 400 068 )...Defendant
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 18th SEPTEMBER, 2021.
Ms. Tejashree Sawratkar I/b Navdeep Vora and Associates, Advocate for
the plaintiff.
None for the defendant – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
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Comm.Suit No. 695/21. 2 Ex-parte Judgment (Exh.21).
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a company registered under the
Companies Act, 1956, engaged in the business of sales and services of
airconditioners, refrigerators and such other allied products including
rendering after sales services. The defendant carries on business as a
reseller of the similar products of various brands and make. As the
defendant used to purchase airconditioners/machines from the
plaintiff, good business relations were developed between them.
Therefore, the plaintiff sold and supplied airconditioners to the
defendant as per eight tax invoices referred in para 4 of the plaint as
per oral instructions of the defendant. Price of all these airconditioners
was Rs.53,18,977/ and the defendant made part payment of
Rs.22,00,000/. Therefore, principal amount of Rs.31,18,977/ is
outstanding. Basically, the defendant had paid Rs.5,00,000/ through
RTGS to the plaintiff on 22/11/2018 i.e. after filing of the present suit.
Therefore, the plaintiff reduced principal amount from Rs.36,18,977/
to Rs.31,18,977/ by carrying out amendment in the body of the plaint
as well as prayer clause. Accordingly, the plaintiff has sought recovery
of principal amount of Rs.31,18,977/. He further claimed interest of
Rs.7,74,161/ on sum of Rs.36,18,977/ at the rate of 18% p.a. as
elaborated in Exh.H. He further prayed for interest at the rate of 18%
p.a. on the sum of Rs.36,18,977/ from the date of the suit till
22/11/2018. He further prayed for interest at the rate of 18% p.a. on
the sum of Rs.31,18,977/ from 22/11/2018 till realization of the
amount.
3. The defendant was duly served with writ of summons as
per affidavit of service and Sheriff report on writ of summons dated
11/09/2018, but he failed to appear and oppose the claim of the
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Comm.Suit No. 695/21. 3 Ex-parte Judgment (Exh.21).
plaintiff. Therefore, my learned Predecessor passed the exparte order
against him on 18/01/2019.
4. PW 1 Bipin Damji Chheda deposed on evidence affidavit
(Exh.2) and proved documents filed with list of documents (Exh.3).
Proved documents are at Exh.4 to 19. The plaintiff closed evidence vide
pursis (Exh.20). Heard learned counsel Ms. Tejashree Sawratkar for the
plaintiff.
5. 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 principal amount of
Rs.31,18,977/ ? In the Affirmative.
2. Does the plaintiff prove that he is
entitled to aggregate interest of
Rs.7,74,161/ on sum of Rs.36,18,977/
at the rate of 18% p.a. from the dates of
invoices till the date of filing of the suit
as per Exh.H ? In the Affirmative
with reduction in
the rate of interest
@ 15% p.a.
3. Does the plaintiff prove that he is
entitled to interest at the rate of 18%
p.a. on the sum of Rs.36,18,977/ from
the date of the suit till 22/11/2018 ? In the Affirmative
with reduction in
the rate of interest
@ 15% p.a.
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Comm.Suit No. 695/21. 4 Ex-parte Judgment (Exh.21).
4. Does the plaintiff prove that he is
entitled to interest at the rate of 18%
p.a. on the sum of Rs.31,18,977/ from
22/11/2018 till realization of the
amount ? In the Affirmative
with reduction in
the rate of interest
@ 15% p.a.
5. What order as to costs ? As per final order.
6. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 4 :
6. On perusal of contents in evidence affidavit (Exh.2) filed by
witness Bipin Chheda, it appears that plaintiff had sold and delivered
airconditioners as per eight invoices (Exh.5 colly.). He further deposed
about part payment of Rs.22,00,000/ in four tranches of Rs.3,00,000/,
Rs.9,00,000/, Rs.5,00,000/ and Rs.5,00,000/. He has placed on
record copies of statements of the plaintiff's account maintained with
Indian Bank, Dautsche Bank (Exh.6 and 7 respectively). Both these
documents proved part payment of Rs.22,00,000/ received by the
plaintiff from the defendant. This witness has also proved statement of
computation of liability of MVAT (Exh.8) and extract of sales register
(Exh.9). There is reference of four invoices in Exh.9. He has also
proved paid challans in respect of MVAT (Exh.10). He further proved
the documents relating to computation of liability as well as extract of
sales register (Exh.12 and 13 respectively). Remaining four
transactions are reflecting in Exh.13. In short, the plaintiff had actually
sold and supplied goods to the defendant and mentioned the same in
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Comm.Suit No. 695/21. 5 Ex-parte Judgment (Exh.21).
his record and also discharged the tax liability in respect of these goods.
It is pertinent to note that the defendant made part payment of
Rs.17,00,000/ before filing of the suit and Rs.5,00,000/ after filing of
the suit on 22/11/2018. Subsequent payment fortifies to the case of
the plaintiff that he is pursuing the aspect of his legal dues before this
Court by filing the present suit. In addition to it, advocate for the
plaintiff had sent letters dated 18/09/2017 and 22/11/2017 (Exh.16
and 18 respectively) to the defendant. Exh.16 is duly served upon the
defendant as per Exh.17. Exh.18 is returned back with endorsement on
the RPAD envelope 'Unclaimed'. Then, the plaintiff filed the present
suit.
7. It is established from oral and documentary evidence on
record that the plaintiff had sold and delivered goods to the defendant.
The defendant made partial payment in respect of few invoices and
failed to pay remaining amount. In the light of all above discussion, the
plaintiff has succeeded in proving his case with the help of sufficient
oral and documentary evidence.
8. So far as interest rate is concerned, there is no express
clause on invoices regarding rate of interest. As interest claimed by the
plaintiff is too exorbitant to consider and it is excess than that of usually
charged in commercial transactions. Therefore, reasonable reduction in
rate of interest is required. Interest at the rate of 15% p.a. would be
appropriate and therefore, it is being granted on the principal amount.
Considering payment of Rs.5,00,000/ is made after filing of the suit,
the plaintiff is claiming interest till the date of payment of Rs.5,00,000/
by adding this amount in outstanding amount and he reduced it while
claiming interest for the period commencing from 22/11/2018. All
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Comm.Suit No. 695/21. 6 Ex-parte Judgment (Exh.21).
these claims of the plaintiff are liable to be considered. Cost of the suit
is liable to be imposed on the defendant. In the light of above
discussion, I record my findings as to points no.1 to 4 in the affirmative
with reduction of interest rate as discussed above. Hence, I pass the
following order :
ORDER
1. Commercial Suit No. 695/2021 is partly decreed.
2. The defendant is directed to pay amount of Rs.31,18,977/
(Rupees Thirtyone Lakhs Eighteen Thousand Nine
Hundred Seventyseven Only) to the plaintiff within three
months from the date of decree.
3. The defendant is further directed to pay interest @ 15%
p.a. on the amount of Rs.36,18,977/ to the plaintiff from
the dates of invoices till 22/11/2018.
4. The defendant is further directed to pay interest @ 15%
p.a. on the amount of Rs.31,18,977/ to the plaintiff from
22/11/2018 till its realization.
5. The defendant 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 : 18/09/2021. Mumbai.
1. Dictated online on : 18/09/2021.
2. Signed on : 18/09/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 695/21. 7 Ex-parte Judgment (Exh.21).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/09/2021. 5.11 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 18/09/2021.
Judgment/Order signed by P.O. on 18/09/2021.
Judgment/Order uploaded on 18/09/2021.
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