Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010026512018
Filed on :21.02.2018
Registered On :21.04.2018
Decided on :06/02/2021
Duration :Y-02/M-11/D-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 512 OF 2018
EXHIBIT-11
Hasan Mustafa Mirza
Age-23 years, Indian Inhabitant
Sole Proprietor of Havana Trading
having its address at-8, Harbor View,
3rd Floor, 29 Colaba Causeway, Colaba
Mumbai-400 001 ….. Plaintiff
V/s.
Prakash Bhailal Ghor,
Age- 50 years, Major, Occupation : Business
Sole Proprietor of Cluster wood,
and
Sole Proprietor of Wood Smith,
having address at C 03,
Old Petit Mansion,
Old Sleater Road,
Opp. Krishna Palace Hotel
Grant Road (West)
Mumbai-400 007 ... Defendant
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Summ. Suit No.512/2018
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SUIT FOR RECOVERY OF RS.14,36,306/-
Appearance:-
Adv. Mr. Bhasin for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
JUDGE CITY CIVIL COURT
GR. MUMBAI (C.R. NO.59).
DATE : 06/02/2021
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
The facts of the case are as under :
2. The Plaintiff is sole proprietor of Havana trading and doing
business of sourcing and supply of various goods for commercial
purpose including that of decorative aluminum sheets. The defendant
represented that he is engaged in business exterior and interior
decoration in the two different sole proprietary firms namely Cluster
Wood and Wood Smith. From March-2017 defendant started placing
order with plaintiff for supply of decorative aluminum sheets for his
both sole proprietary firms i.e. Cluster Wood and Wood Smith. Pursuant
to the orders placed by the defendant, plaintiff sold, supplied and
delivered to the defendant the 19 sheets/goods. The plaintiff raised
delivery note dated 14.03.2017 for the sum of Rs. 79,040/- of delivery
Sheets/goods. The defendant made cash payment of Rs.1,50,000/- to
the plaintiff. Thereafter, again pursuant to the orders placed by the
defendant, plaintiff supplied further decorative aluminum sheets to the
defendant. The plaintiff again raised delivery note dated 08/07/2017
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for the sum of Rs.5,71,160 of delivery of 131 Sheets/goods and delivery
note dated 25/07/2017 for the sum of Rs.9,00,340/- of delivery of 175
sheets/goods. Defendant issued three cheques dated 24/05/2017,
02/06/2017 and 28/08/2017 in favour of plaintiff, but when presented,
the said cheques are dishonoured. Thereafter, various communications
were taken placed vide email, telephonically and by post between
plaintiff and defendant. Defendant failed to pay the total sum of
Rs.14,36,306/- inspite of various requests made by the plaintiff and
receipt of legal notices. According to the plaintiff defendant is liable to
pay amount of Rs.14,36,306/- on the date of the filing of the suit.
Hence, plaintiff is constrained to file the suit for recovery of the said
amount. The total suit claim of the plaintiff for Rs.14,36,306/-.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
4. 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. What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.14,00,540/- with
interest
@ 12 % per annum
2. What order and decree? As per final order.
REASONS
5. In order to prove the case of the plaintiff filed following
documentary evidence.
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Exhibit.
No.
Description of documents Date
6 Original copy of delivery note 14.03.2017
7 (colly) Original copies of delivery notes 08.07.2017 and
25.07.2017
8 (colly) Original copies of invoices 06.06.2017,
20.06.2017 and
11.12.2017
9(colly) Original copies of dishonoured
cheques
24.05.2017,
02.06.2017 and
28.08.2017
10(colly) Original copies of notices 18.12.2017
05.01.2018
19.12.2017
05.01.2018
AS TO POINT NO.1:
6. All the documents produced by the plaintiff at list Exhibit-6
to 10 go to establish that plaintiff has supplied goods to the defendant.
The documents further prove that the amount of Rs.14,00,540/- is due
and payable to the plaintiff company from defendant towards delivered
of goods. But, defendant failed to pay total amount of Rs.14,00,540/-
towards purchase of goods. The documents at list Exhibit-6 to 10 go to
establish that defendant is liable to pay Rs.14,00,540/- to the plaintiff
on the date of filing of the suit towards the purchase of goods and
therefore the defendant is avoid to pay the balance amount to the
plaintiff. In this background, it is held that plaintiff is entitled to recover
sum of Rs.14,00,540/- from the defendant.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
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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 no
contract existing between the parties as to the rate of interest which
shall be levied. Therefore, rate of interest at the rate of 12% per annum
would be just and proper to be awarded on the principal sum adjudged
i.e. amount of Rs.14,00,540/-. Hence, point no.1 is answered in the
affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.14,00,540/- from the
defendant with interest at the rate of 12% per annum from the date of
filing of the suit till its realization. Plaintiff is also entitled to recover
cost of the suit from the defendant. Hence, in answered to point no.2, I
proceed to pass the following order.
ORDER
1. The defendant shall pay Rs.14,00,540/- (Rs. Fourteen
Lakhs Five Hundred Forty Only) with interest at the
rate of 12% per annum to the plaintiff from the date
of filing of the suit till its realization.
2. The defendant 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.
(S. G. Shaikh)
Judge, City Civil Court,
Date :06/02/2021 Gr. Bombay
Dictated on : 06/02/2021
Typed on : 06/02/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/02/2021 05.25 p.m. ( Mayuresh P Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
06/02/2021
JUDGMENT/ORDER signed by
P.O.on
06/02/2021
JUDGMENT/ORDER uploaded on 06/02/2021
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