Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit 23/2021
MHCC010028732020 Presented on : 05.03.2020
Registered on : 28.01.2021
Decided on : 02.05.2023
Duration :02Y/03M/04D
Exh.24
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM No.32)
COMMERCIAL SUIT No.23 of 2021
M/s Champion Dealers Pvt. Ltd.
Through its director
Mr. Mihir Mukesh Fifadra, Aged 32 years,
Having his address at 310, Bharat Chamber,
Baroda Street, Carnac Bunder, Masjid Bunder
(East), Mumbai 400 009. ...PLAINTIFF
VERSUS
1. M/s. Prem Industries,
2. Mr. Shailendra Jaiswal,
3. Mrs. Sunita Jaiswal
Having their address at B1/1, 27 Acre,
Kothari Compound No.3, Chitalsar Manpada,
Thane – 400 607.
...DEFENDANTS
S. G. Mahamuni, learned advocate for plaintiff.
Defendants – exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
E XP A R T E J U D G M E N T
(Delivered on 02/05/2023)
This is a suit for recovery of sum of Rs.7,02,109/
alongwith interest @ of Rs.21 % p.a. from the date of suit till realisation
of amount.
2. It is case of plaintiff that it is private limited company.
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2 Comm. Suit 23/2021
Defendant No.1 is partnership firm, defendant Nos. 2 and 3 are it’s
partners. Defendant is known to plaintiff since 2015 as there is business
relations between them. Plaintiff is carrying on business in the name
and style ‘Iron and Steel Merchant and Importer.’ Defendants
approached to the plaintiff for purchase of round bar from time to time.
Plaintiff has sold and supplied round bar total worth of Rs.71,91,453/.
Defendants have paid part payment of Rs.44,02,072/ leaving balance
sum of Rs.27,89,381/. The credit terms agreed upon between them
was 60 days. Therefore, the said balance amount became overdue and
therefore, plaintiff has charged interest of Rs.10,75,968/.
3. Plaintiff had issued debit note to the defendants on
16.03.2018. After receipt of the said debit note, they requested to settle
the amount of interest at lumpsum of Rs.10,00,000/. The details of
pending invoices payable by defendants are as under :
Invoice Date Amount
1718/S/051 30.06.2017 16,07,551/
1718/S/BMM/046 09.08.2017 4,21,322/
1718/S/BSP/047 09.08.2017 84,436/
1718/S/BSP/0247 23.08.2017 46,488/
1718/S/IMP/0448 01.09.2017 7,06,726/
1718/S/VSP/0540 11.02.2017 59,057/
1718/S/IMP/0766 02.10.2017 6,41,792/
1718/S/IMP/1189 22.11.2017 5,77,756/
1718/INTEREST DEBIT NOTE/020 16.03.2018 10,75,968/
4. Plaintiff was in continuous follow up with defendants
through emails between 01.07.2017 to 29.01.2018, requesting to make
the payment of overdue bills, but they neglected to pay the same.
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3 Comm. Suit 23/2021
Thereafter, defendants have issued 6 cheques against the outstanding
amount of Rs.37,39,381/. All cheques were dishonoured due to
insufficient funds. Hence, plaintiff has filed complaint under Section
138 of the Negotiable Instruments Act. Defendants have also issued
cheque of Rs.7,00,000/ on 11.02.2018 which was dishonoured due to
insufficient funds. Defendants have deliberately neglected to make the
payment of outstanding dues. Therefore, plaintiff has issued legal notice
dated 19.06.2019 to the defendants. Despite service of the said notice,
they did not pay the outstanding dues.
5. Plaintiff has filed cases regarding of sum of Rs.30,87,272/
which is due against dishonoured cheques. As far as recovery of sum of
Rs.7,00,000/ is concerned, he could not file complaint of dishonour of
cheques due to lapse of limitation. Hence, this suit for recovery of
Rs.7,02,109/.
6. As per service affidavit Exh.10, defendants served with suit
summons on 26.09.2022 by way of publication in newspaper but
defendants did not appear. Hence, suit proceeded exparte against
them.
7. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Does plaintiff prove that it has sold,
supplied and delivered goods of
Rs.71,91,453/ to defendants?
…Yes
2. Does plaintiff prove that defendants are in
outstanding sum of Rs.7,02,109/ ? ...Yes
3. Whether plaintiff is entitled for the relief
claimed ? …Yes
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4 Comm. Suit 23/2021
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 TO 3
8. Heard learned counsel of Plaintiff. Plaintiff has examined
its Director (PW1 Mihir Mukesh Fifadra) to prove its case. He
reproduced all content of plaint in his chiefexamination. His evidence
is supported by documentary evidence as under : Board resolution,
Invoice dated 01.09.2017, Delivery Challan dated 01.09.2017,
Weighing receipt dated 01.09.2017, Emails sent by plaintiff to
defendant No.1, Status report of the Criminal Cases pending before Ld.
Metropolitan Magistrate, Mazgaon, Mumbai, Cheque dated 11.02.2018,
Bank Memo dated 21.02.2018 and Email dated 26.09.2019 (Exh.14 to
Exh.22 respectively).
9. In view of evidence of PW1 Director of plaintiff and
documentary evidence, it becomes clear that on the request of
defendants between 30.06.2017 to 22.11.2017 plaintiff has sold,
supplied and delivered goods to the defendants as per invoices
described in the plaint. The term mentioned on the invoice indicates
that the credit period was 30 days.
10. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. There is
no reason to disbelieve his testimony. Hence, plaintiff succeed to prove
that it has sold, supplied and delivered above mentioned goods to
defendants. The amount of Rs.7,02,109/ is due and payable by
defendants. Defendants are liable to pay interest on principal sum @
21% p.a. because he deprived the plaintiff from using the money and
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5 Comm. Suit 23/2021
also the transaction is of commercial nature. Therefore, plaintiff is
entitled for the recovery of the same. Hence, I answered point Nos.1 to
3 as above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendants are jointly and severally directed to pay
to plaintiff the amount of Rs.7,02,109/ with interest @
21% p.a. from the date of suit till realization of the said
amount.
3. Decree be drawn up accordingly.
Date : 02/05/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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6 Comm. Suit 23/2021
Direct dictated on : 02/05/2023.
Checked on : 02/05/2023.
Signed on : 02/05/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02/05/2023. Ms. Manisha D. Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 02/05/2023.
Order signed by P.O. on 02/05/2023.
Order uploaded on 02/05/2023.
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