Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010026522018
Presented on : 21-02-2018
Registered on : 20-03-2018
Decided on : 24-08-2022
Duration : 04Y-06M-3D
EXHIBIT- 06
IN THE COURT OF JUDGE CITY CIVIL COURT
AT GREATER BOMBAY
SUMMARY SUIT NO. 371 OF 2018
Rajesh Sumermal Munot
Son of Sumermal Munot, aged 31 years,
Occupation:Business, carrying on business
under the name and style of 'MUNOT
INDUSTRIES', at 25/A, Chandawadi, 138,
C.P.Tank Road, Mumbai-400 004.
Mobile No.09833069901
Email; munotindustries @yahoo.com
...Plaintiff
Versus
1. Manojj S. Katyal also known as Manoj
S. Katyal,
Full name not known, Adult, Age not
known, Occupation: Business carrying on
business under the name and style of "M
S FABRICATION".
2. Mrs. Deepika Manoj Katyal
wife of Manoj S.Katyal,Adult, Age: not
known, Occupation:Housewife.
3. Karan Manoj Katyal
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son of Manoj S. Katyal, Adult, Age: not
known, Occupation Unemployed.
4. Kunal Manoj Katyal.
son of Manoj S. Katyal, Adult, Age: not
known, Occupation Unemployed.
...Defendants
Appearance :
Ld. Advocate Krishnagopal S. Tripathi for plaintiff.
None for defendants (Exparte).
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 24/08/2022
Judgment
This is the Summary suit filed under Rule 2 of Order XXXVII of
Code of Civil Procedure, 1908 (“CPC” for short) for recovery of an amount
of Rs. 52,90,214/- from defendant No. 1 along with interest @ of 24% p.a.
till its full realization. Defendant Nos. 2 to 4 are formal parties.
Plaintiff’s case-
2. Plaintiff claims to have supplied M S Pipe/Fitting/Plate/Structural
sheet etc.(goods) to the defendants between 18.09.2015 to 23.02.2016 and
had issued 24 Tax invoices amounting to Rs.1,08,07,603/-. Plaintiff further
contends that defendant No.1 had made, from time to time, part payment
of Rs.55,17,389/-.The plaintiff claims outstanding amount of Rs.
52,90,214/- against the said invoices. Plaintiff requested defendants to clear
the outstanding amount, however, defendants did not pay attention to his
request. That led plaintiff to issue a legal notice claiming the payment of the
said amount vide notice dated 16.09.2016. In spite of the said notice,
defendant No. 1 did not pay the amount. That’s why the present suit.
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3. Defendants had appeared in response to the summons issued by
this Court and filed reply to the Summons for Judgment and claimed
unconditional lave to defend. Ld. predecessor of this Court by Order dated
03.09.2019, pleased to grant conditional leave to the defendants on the
condition of depositing an amount of Rs.50 lakh in this Court within four
weeks from the date of this order. The Ld. predecessor of this Court had
taken pains to consider on all the contentions raised by either side.
Admittedly, the condition is not complied by the defendants, nor the said
order. Ld advocate for the plaintiff points out that defendants have
challenged the order in Summons for Judgment No. 163 of 2018 passed by
this Court before the Hon’ble High Court by way of Writ Petition No.
(St.No.27734 of 2019 and had prayed extension of time to deposit an
amount of Rs.50 lakhs. The Ld. predecessor of this Court by hearing both
the sides by observing that there is no stay to the order passed by this Court
pleased to reject the application.
4. Defendants have not placed anything on record to show that the
order passed by this Court in SJ No.163 of 2018, is neither stayed or set
aside by the Hon’ble High Court. Therefore, I find no reason to defer
hearing of this suit. Ld. advocate for the plaintiff submits that there is no
stay to the present suit.
5. So as to decide the present suit following points arise for my
consideration. I have recorded my findings thereon, for the reasons
provided as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to recover
an amount of Rs.32,22,749 from
defendant?
Partly yes. Plaintiff is
entitled for an amount of
Rs.52,90,214/-along with
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If yes, at what rate interest? interest at the rate of 09%
per annum from the
31.01.2018 till entire
realization of amount.
2. What order and decree? Suit is partly decreed as
per final order.
REASONS
As to Point Nos.1 and 2-
6. Clause (b) of Sub Rule (6) of Rule 3 of Order 37 of CPC provides
that if the defendant is permitted to defend the claim on condition of a
sufficient security within the time stipulated and if the defendant failed to
comply the said condition, the plaintiff shall be entitled to judgment
forthwith. Admittedly the defendant has not complied the order of
conditional leave to defend. As such the failure of the defendant to comply
order of this Court dated 03.09.2019 itself entitled plaintiff to seek
judgment forthwith. Still it would be necessary to examine whether the
plaintiff has placed substantial material on record to show his entitlement to
claim decree.
7. It is the case of the plaintiff that so as to pay the outstanding
amount, defendants had issued in all twelve cheques of different amount,
issued on 20/08/2016, amounting to Rs.39 lakhs. However, those cheques
were also dishonoured. Plaintiff claims that proceeding under section 138 of
Negotiable Instruments Act (“NI Act” for short) were initiated against the
defendants. However as the accused absconding, proceedings u/s. 138 of NI
Act are still not finalized.
8. It has been contended by the plaintiff that in view of supply of
goods and the demand made by the plaintiff about payment of outstanding
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amount, suit be decreed.
9. Ramesh Munot (PW1) has examined himself on oath by way of
affidavit-in-chief. He has reiterated all the contentions of the plaint and
claims decree. Plaintiff has also filed the purchase order, invoices on record
which shows the delivery of the goods to the defendant No. 1. He has also
filed the Confirmation of Ledger Account and copy Ledger account
maintained by him. The original twelve cheques are also on record along
with respective dishonoured memos issued by the Bank. The demand notice
is also on record. From these documents, it gets clear that plaintiff had
supplied goods to the defendants. Defendants have never made any
grievance about non receipt of goods or about the defects in the goods.
Admittedly, there is no
contra evidence on record to dispute the contentions
of plaintiff. As such I hold that an amount of Rs.52,90,214/- is due and
outstanding from the defendants. Therefore plaintiff is entitled for the
decree of the said amount against the defendants.
10. So far as the claim of interest is concerned, plaintiff has claimed
interest from the date of Confirmation of Account dated 01.04.2016 along
with 24% p.a. and further interest at the same rate till realization.
Admittedly, there was no agreed rate of interest between the parties.
Considering the interest charged by the Nationalized Bank on the fixed
deposit, and the nature of transaction between the parties, I find it just and
proper to grant interest @ of 9% p.a. on the principal amount from the date
of legal notice seeking recovery of amount i.e. from 31.01.2018 till
realization of entire amount. Hence, the order.
ORDER
1) Summary Suit No.371 of 2018 is hereby partly decreed with
cost.
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2) Defendant No.1 do pay an amount of Rs.52,90,214/-(Rupees
Fifty Two Lakhs Ninety Thousand Two Hundred Fourteen Only)
to the plaintiff along with interest at the rate of 09 % per annum
from 31.01.2018 till realization of entire amount.
3) Plaintiff is entitled for refund of Court fees, as per rules.
4) Decree be drawn up accordingly.
Date- 24/08/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 24/08/2022
Transcribed on : 25/08/2022
Corrected on : 29/08/2022
reprinted on : 29/08/2022
Signed on : 29/08/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/08/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
24/08/2022
JUDGMENT/ORDER signed by P. O. on 29/08/2022
JUDGMENT/ORDER uploaded on 29/08/2022
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