Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1
Presented on : 13-03-2019
Registered on : 19-06-2019
Decided on : 05-02-2021
Duration : 1Y, 10M, 23D
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 30 OF 2019
(CNR No.MHCC01-002884-2019)
Mr. Pradeep Shendur Chipkar
Partner of M/s. Yash Enterprises,
Age-61, Occ: Business
having address at 6/2 Kiran Mangal CHS
Bhandar Lane, L.J. Road, Mahim
Mumbai-400016. …..Plaintiff
V/s
1. M/s Rupji Constructions,
C-36, Shree Ram Industrial Estate,
3rd floor, G.D. Ambedkar Marg,
Wadala, Mumbai 400031
2.Mr. Madhukar Magasham Rupji,
Partner of M/s. Rupji Constructions
Aged 78 years, Occ: Business,
Residing at 203, A Wing, 2nd Floor,
Om Residency, Opp.Bhoiwada, Court,
Mumbai-400 012
3.Mr. Tejal Madjukar Rupji
Partner of M/s Rupji Constructions
Aged 46 years, Occ: Business,
Residing at 203, A-Wing, 2nd Floor,
Om Residency, Opp. Bhoiwada, Court,
Mumbai- 400 012 ....Defendants
APPEARANCE:-
Ld. Adv. Ms. Sarita Dahiwile for plaintiff.
None for defendants.
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CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 05th February, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree against
the defendants, directing them to pay the plaintiff a sum of Rs.
88,70,318/- (Rupees Eighty Eight Lakhs Seventy Thousand Three
Hundred Eighteen Only) with interest thereon at the rate of 18% per
annum from the date of decree till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The plaintiff is running business in the name and style of
M/s. Yash Enterprises and is in business of Interior and Painting Works.
The defendants have approached and requested the plaintiff to take up
all interior and painting (external and internal) work for their ongoing
construction sites at various places in Mumbai and suburban.
As per the order and request of defendants, the plaintiff
had provided quotation for interior and painting fixing with labour and
material for the works to the defendants. The plaintiff had issued
quotations from 25.04.2011 to 12.02.2016. The defendants requested
the plaintiff to undertake the painting, gypsum work, external and
internal painting work for various construction. The plaintiff had
undertaken the following gypsum work for the defendants:
a. Rupji Memories- work A & B Wing- External Painting
b. Rupji Memories- A,B,C wing- Gypsum Work
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c. Rupji Memories – A & B wing- Internal painting
d. Rupji Memories – A & B wing - Internal painting
e. Rupji Castle – (Flase Celling of Entrance)
f. Rupji Construction
Dadar Office 2nd floor- painting work
g. Rupji Arina – Gympum 1st to 19th floor
h. Rupji Arina Rehab- Internal Painting 3rd to 21st floor
i. Rupji Arina(sale wing)- Gypsum Work 1st 23rd floor
j. Rupji Arina Rehab – Sale Wing..Internal Painting 3rd to 21 floor
k. Rupji Arcade, Chembur- External Painting
l. Rupji Arcade Chembur- Painting
The plaintiff had carried out the aforesaid works under
supervision of defendants. The defendants did not have any grievances
to the quality and quantity of the material and the work carried out by
the plaintiff. The work was carried out by the plaintiff out of his own
costs. The plaintiff has raised bills for total amount of Rs. 88,80,817/-.
The bills were received by the defendants but had failed to pay the
amount. The plaintiff also had lodged complaint with the Police on
22.01.2018. Before the Police, defendants assured to make payment
within one month but had failed to make payment. The plaintiff,
therefore, had issued notice (Exh.14) on 31.01.2019. The notice was
returned back with the remark as left and intimation dated 31.01.2019
by Postal packet. The plaintiff, therefore, had instituted the present suit
for Recovery of Amount for the work carried out by him.
3. The defendants have not appeared in the suit. The suit is
proceeded exparte against defendants.
4. The following points arise for my determination with my
findings thereon and the reasons to follow :-
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SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of a sum of Rs. 88,70,318/-
(Rupees Eighty Eight Lakhs Seventy
Thousand Three Hundred Eighteen
Only) with interest thereon at the rate of
18% per annum from the date of
decree till its realization.
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
5. The plaintiff in support of its case had examined Mr.
Pradeep Shendur Chipkar at Exh. 09. The plaintiff had filed following
documents (Exh.10):
Sr. No. Particulars Exh.
1 Copies of the Quotation Dated 25.04.2011,
02.02.2013, 23.02.2013, 01.06.2013 and
12.02.2016
11
2 Copies of Bills “Colly” 12
3 Balance Sheet/Ledger Account 13
4 Copy of notice dated 31.01.2019 14
5 Postal Packet of Notice 15
The plaintiff had reiterated all the contentions raised by
him in the plaint. The plaintiff had filed copies of quotations dated
25.04.2011, 02.02.2013, 23.02.2013, 01.06.2013 and 12.02.2016 at
Exh.11. The plaintiff had filed the bills (colly) issued to the defendants
vide Exh. 12. The plaintiff also had filed the balance sheet/ledger
account at Exh.13. The plaintiff also had filed on the record the copy of
complaint made to the police.
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6. It is the contention of the plaintiff that amount of
Rs.10,499/-(Rupees Ten Thousand Four Hundred Ninety Nine Only)
received by him. The receipts issued by plaintiff for the work done were
received by the defendants but the amount was not paid to the plaintiff.
Therefore, the plaintiff had issued notice on 31.01.2019. The same is
not received by the defendants. The report of service of notice shows
that intimation was given by the plaintiff with remark as intimated.
The contentions raised by the plaintiff in his plaint and the evidence
have gone unchallenged. The plaintiff had successfully shown that he
had provided quotations from 25.04.2011 to 12.02.2016 to the
defendants. He further had carried out the following works:
a. Rupji Memories- work A & B Wing- External Painting
b. Rupji Memories- A,B,C wing- Gypsum Work
c. Rupji Memories – A & B wing- Internal painting
d. Rupji Memories – A & B wing - Internal painting
e. Rupji Castle – (Flase Celling of Entrance)
f. Rupji Construction
Dadar Office 2nd floor- painting work
g. Rupji Arina – Gypsum 1st to 19th floor
h. Rupji Arina Rehab- Internal Painting 3rd to 21st floor
i. Rupji Arina(sale wing)- Gypsum Work 1st 23rd floor
j. Rupji Arina Rehab – Sale Wing..Internal Painting 3rd to 21 floor
k. Rupji Arcade, Chembur- External Painting
l. Rupji Arcade Chembur- Painting
The plaintiff accordingly had issued bills Exh.12. The
defendants had received the said bills but had not paid the amount.
Therefore, the plaintiff had issued the notice to defendants. The notice
was returned back with the remark as intimated. Inspite of the notice,
the amount is not paid by the defendants. The defendants inspite of
issuance of summons, had not appeared in the suit and had not
contested the contentions raised by the plaintiff in the plaint.
The contentions raised by the plaintiff have gone
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unchallenged. The defendants implidely by his conduct had shown that
he does not have any defence in between them. The plaintiff had
successfully shown that pursuant to the quotations, he had carried
about the abovesaid work for the defendants and the defendants have
failed to make payment.
The plaintiff had prayed for interest of 18% p.a. on the due
amount from the defendants. There is nothing to indicate that on
failure to pay the plaintiff he would be entitled to charge interest of
18% p.a. on the due amount. It is not in dispute that transaction
between the plaintiff and defendants involved in the suit is a
commercial. In facts and circumstances of the case, it would be
appropriate to direct the defendants to pay the sum of Rs. 88,70,318/-
(Rupees Eighty Eight Lakhs Seventy Thousand Three Hundred Eighteen
Only) with interest thereon at the rate of 10% per annum from the date
of filing of the suit till its realization. Hence, I answer point No. 1 is
“in
Affirmative.” In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The Defendants are directed to pay to the plaintiff, the sum of Rs.
88,70,318/- (Rupees Eighty Eight Lakhs Seventy Thousand Three
Hundred Eighteen Only) with interest thereon at the rate of 10% per
annum from the date of filing of the suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N.YADAV)
Additional Sessions Judge
Date: 05.02.2021 Gr.Bombay at Mumbai.
Dictated on : 05.02.2021
Transcribed on : 08.02.2021
Signed by H.H.J.on :10.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.02.2021 at 4.58 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
05.02.2021
Judgment/order signed by P.O. on 10.02.2021
Judgment/order uploaded on 11.02.2021
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