Final Order 1

Order Details: Ex-parte Judgement
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MHCC010029822020
Presented on 03/03/2020
Registered on 14/03/2020
Decided on 09/12/2022
Duration Yrs. M. Days
02 09 06
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
SUMMARY SUIT NO. 284 OF 2020
EXHIBIT-11
Mr. Khemdas Bhemdas Sadhu, Proprietor,
M/s. Silicon Metal, Aged 34, Occ-Business,
Shop No.3, Ground Floor, 41 Kamathipura,
10thLane,Mumbai Central, Mumbai-400008.
M9022885785,siliconmetal171@gmail.com
...Plaintiff
Versus
Mr. Jagdish Prajapati, Proprietor of M/s.
Mahima Impex Aged not known,
Occ.Business,
Address: 158, 1st Floor, Dr.M.G.Mohimtura
Marg, 3rd Kumbharwada Mumbai- 400 004,
M 9833885509.
Also at: 59/61 Rangari Chawl, Sant Sena
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Maharaj Marg, Durgadevi Udyan 2nd
Kumbharwada, Girgaum, Mumbai-400 004.
...Defendants
Appearance :
Ld. advocate Sintoo Bhagat for plaintiff.
Defendants absent (
Exparte).
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 09/12/2022
JUDGMENT
( Dictated and pronounced in open Court)
This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil Procedure, 1908 (for short 'CPC') for recovery of a sum of
Rs.1,16,072 along with interest thereon at the rate of 24% p.a. from
the date of filing of suit till realization of entire amount.
Plaintiff’s case in brief-
2. Plaintiff claims to be involved in the business of supply of
stainless steel. Defendant is also involved in the same business.
Defendant had requested supply of ‘S.S. Sheet plates’ of certain
quantity. Accordingly, plaintiff supplied the goods on 09-06-2018 and
26-06-2018, amounting to Rs.1,16,072/-. Plaintiff claims to have raised
two invoices regarding the said supply of the goods. It is contended that
despite receipt of the goods, defendant failed to pay an amount of bill.
Plaintiff was required to send Letter dated 27-03-2018 seeking the
payment, however it was not responded favourably. Therefore, plaintiff
through his advocate issued a demand Notice dated 03-12-2019. The
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said notice was duly served. However, defendant neither replied the
notice nor paid the amount. Hence, the present suit.
3. Defendant was duly served through Bailiff and the affidavit
of service to that effect is already filed on record at Exh.3. Despite the
service, defendant failed to cause appearance and as such suit is
proceeded
exparte.
4. Plaintiff, so as to prove its entitlement has examined Mr.
Khemdas Bhemdas Sadhu, by filing his Affidavit-in-chief at Exh.4.
Plaintiff has also tendered various documents on record is as under-
Sr.
No.
Exhibit
No. Particulars
1 Exh.6 Original Invoice copies dated 09-06-2018 & 26-06-2018
2 Exh.7 Original Bank statements from July-August 2018
3 Exh.8 Original Ledger account signed by the defendant.
4 Exh.9 Original copy of letter with envelope dated 27-03-2018
5 Exh.10 Original copy of the advocate notice with returned
envelope tracking report and tracking report dated 03-
12-2019, 04-12-2019 and 27-12-2019
5. So as to decide the present suit following points arise for
my consideration. I have recorded my findings along with reasons on
the said point as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to
recover principal amount of
Defendant do pay an amount
Rs.1,16,072/-to the plaintiff
along with interest thereon
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Rs.1,16,072 /- from defendant?
If yes, at what rate interest?
at the rate of 12% p.a. from
date of filing of the suit i.e.
03-03-2020 till realization of
entire amount.
2. What order and decree? Suit is partly decreed as per
final order.
REASONS
As to Point No.1-
6. Plaintiff’s witness has reiterated the claim of recovery of
amount of Rs.1,16,072/-. It is claimed that defendant neglected and
failed to pay the amount despite several requests and letters. The
invoices placed on record supports the oral evidence. It is contended
that the goods were delivered to the defendant by way of personal
delivery on the same day at the defendants’ shop which is situated in
the same area as that of Plaintiffs’. It is also contended that the goods
were duly utilized by the defendant without raising any dispute as to it’s
price, quantity and quality.
7. It is further contended that there were even other
transactions between the plaintiff and defendant with respect to supply
of the goods. By pointing out the Account Statement (Exh.7) placed on
record, the learned advocate for the plaintiff submits that an amount of
Rs.9,686/- and Rs.32,841/- are received from the defendants with
respect of some other similar transaction.
8. The demand notice dated 03-12-2019 placed on record do
show that the plaintiff had demanded the amount claimed in the suit. It
appears that the defendant neither replied the notice nor paid the
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amount. As the suit is proceeding
exparte there is no contra evidence on
record to dispute the contention of the plaintiff. Even otherwise, the
oral as well as documentary evidence placed on record is sufficient to
show that the goods were supplied and invoices were raised against the
defendant. The said amount is claimed to have not been paid. In view of
the same, I find that plaintiff has proved that it is entitled to recover the
said amount of Rs.1,16,072/- from the defendant.
9. Learned advocate for the plaintiff claims interest at the rate
of 24% p.a. on the ground that the invoices contain said stipulation. He
also concedes that there is no agreed rate of interest between the
parties to be paid on delayed payment.
10. The rate of interest claimed by the plaintiff is clearly on
higher side. I find no delay as such in filing or prosecuting the suit.
Considering the nature of transaction i.e. mercantile one, I find interest
at the rate of 12% p.a. from the date of filing of the suit till realization
of entire amount would meet the ends of the justice. Hence, I answered
point No.1 accordingly.
As to point No.2-
11. From the findings recorded to the point No.1, it is clear
that plaintiff is entitled to recover an amount of Rs.1,16,072 from the
defendant along with interest at the rate of 12% p.a. Hence, in answer
to point No. 2, I proceed to pass following order.
ORDER
A Summary Suit No.284 of 2020 is partly decreed with costs.
B Defendant shall pay an amount of Rs. 1,16,072/- (Rupees One
lakh Sixteen Thousand and Seventy Two only) to the plaintiff
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along with interest thereon at the rate of 12% p.a. from date of
filing of the suit i.e.03-03-2020 till realization of entire amount.
C Court fees be refunded to the plaintiff, as per the rules.
D Decree be drawn up accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date- 09-12-2022 Court Room No.61
Dictated on: 09-12-2022
Transcribed on: 13-12-2022
Signed on : 14-12-2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14-12-2022 at 5.45p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
09-12-2022
JUDGMENT/ORDER signed by P. O. on 14-12-2022
JUDGMENT/ORDER uploaded on 14-12-2022
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