Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.717/2022 : 1 : Judgement
MHCC010031502020
Presented on : 12032020
Registered on : 09112022
Decided on : 10052024
Duration : YY: MM : DD
04 : 01 : 28
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 717 Of 2022
Exhibit25
M/s. Modernizing Trends Pvt. Ltd.
Formerly Known as M/s. Modern Sales
Agency (India) Pvt. Ltd., having its
registered address at: G3, Neel Madhav, V.
P. Road, Near Hira Mongi Navneet Hospital,
Mulund (West), Mumbai.
Through Authorised Representative Kumar
Motumal Gurnani, Age 46 Years. ... Plaintiff.
V/s.
1. M/s. Firesafe Marketing Indian Private
Limited, Flat No. GA1, BlockIV, Bengal
Sarachi Housing Project, Greenwood Park,
Newtown, Rajarhat Kolkata Parganas North
WB700156.
2. M/s. Eversafe Marketing (India) Private
Limited, Registered address at: 6/21,
Poddar Nagar Kolkata WB700068.
Also having address at: 36D/1E/2, East
Topsia Road, Near Science City & Trinamul
Bhavan, Kolkata700039. ... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 10th DAY OF MAY 2024
-- 1 of 8 --
Com. Suit No.717/2022 : 2 : Judgement
: Appearances:
The Ld. Advocate Mauzzama Ansari for Plaintiff.
Defendant's Exparte.
JUDGMENT
The plaintiff has filed the present suit for recovery of sum of
Rs.29,00,405/ as per particulars of Claim with further interest on
Rs.16,71,597/ @ 24% per annum from the date of filling of the suit till
its full realization.
2. Briefly stated facts of the case are as under:
The plaintiff is a Private Limited Company registered under the
Provisions of the Companies Act, 1956 and carrying on business as
dealers of various reputed companies of valves and allied products.
3. The defendant Nos.1 and 2 are Private Limited Company. In the
year 2016, the defendant No.1 placed orders with the plaintiff for the
sale, supply and delivery of various types of goods. As per purchase
order the plaintiff has sold, supplied and delivered the goods. At
delivery time the defendant No.1 has not raised any objection about
quality, quantity and price of goods and defendant No.1 agreed to pay
interest @ 24% per annum on overdue amounts as per invoices. After
part payment there is an invoice balance of Rs.16,71,597/ due and
payable by the defendant No.1 to the plaintiff.
4. It is further submitted that, in discharge of its liability, the
defendant No.1 issued six cheques totalling to Rs.16,61,545/ of HDFC
Bank. Upon presentation of said cheques they were dishonoured and
-- 2 of 8 --
Com. Suit No.717/2022 : 3 : Judgement
returned with memos.
5. Thereafter, the plaintiff informed to Mr. Debabrata Chakrabarty,
who was the Director of the defendant Nos.1 and 2 about the
dishonoured and returned of cheques. The defendant No.2 through Mr.
Chakrabarty enter into a Memorandum of Understanding dated
29.06.2017 and admitted liability of defendant No.1 and agreed to pay
principal sum with interest totalling to Rs.17,96,597/. In discharge of
said liability the defendant No.2 through its director issued 9 cheques
totalling to Rs.17,96,597/ with assurance to clear the liability of the
defendant No.1. Upon assurances and instructions given by the
defendants, the plaintiff presented the aforesaid cheques to its bankers.
However, to the shocked and surprised of the plaintiff when the said
cheques were presented, they were again dishonoured and returned
with reasons, “Payment stopped by drawer”. Thereafter, the plaintiff
sent a demand notice dated 28.09.2017 and 27.12.2017 and thereby
called upon them to clear outstanding dues. However, defendants failed
to clear the dues, hence, the plaintiff had initiated Criminal Proceedings
under section 138 of the N. I. Act.
6. Thereafter, the plaintiff again issued notice dated 23.02.2019,
thereby called upon the defendants to make payment. Despite of
receiving said notice defendants failed and neglected to pay the same.
Thereafter, the plaintiff has filed PreInstitution Mediation application
before DLSA, Mumbai on 14.05.2019, but defendants failed to appear,
hence, the DLSA, Mumbai issued Non Starter Report dated 15.11.2019.
Hence, the suit.
-- 3 of 8 --
Com. Suit No.717/2022 : 4 : Judgement
7. Inspite of service, defendants failed to appear. Hence, suit
proceeded Exparte against them vide order dated 20.11.2023
8. In support of its claim, the plaintiff has examined PW1 Mr.
Kumar Motumal Gurnaki, the Account Executive and Authorised
Representative of the Plaintiff's company at Exh.9. The plaintiff got
proved document through this witness filed alongwith list Exh.10. The
plaintiff has also filed evidence closing pursis at Exh.24.
9. Heard, the Ld. Advocate for the plaintiff. Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.29,00,405/
as per particulars of Claim with
further interest on Rs.16,71,597/
@ 24% per annum from the date of
filling of the suit till its full
realization, as claimed?
Partly Yes.
2. What Order and Decree? As per final order.
REASONS
As to point no.1:
11. The plaintiff has examined PW1 Mr. Kumar Motumal. He
deposed as per the contents of the plaint averments. Hence, I do not
want to reproduce the same to avoid the repetitions. The plaintiff has
-- 4 of 8 --
Com. Suit No.717/2022 : 5 : Judgement
filed certified true extract of Board Resolution dated 10.04.2016 at
Exh.11, thereby, the witness is authorised to depose on behalf of the
Plaintiff's Company. The testimony of the witness remained
unchallenged.
12. It is argued on behalf of the plaintiff that, the plaintiff has sold
and delivered goods from timetotime to the defendants worth
Rs.27,91,947/. The defendants made part payment of Rs.11,20,350/
leaving behind amount of Rs. 16,71,597/. The plaintiff raised invoices
of said amount. Inspite of repeated demands, the defendants failed to
clear the due amount. Initially the defendants have issued 6 cheques
totalling Rs.16,61,545/ towards discharged of their liability. However,
upon presentation of said cheques they were dishonoured. Thereafter,
Mr. Debabrata Chakarbarty on behalf of defendant No.2 and being
former director of defendant no.2 entered into a Memorandum of
Understanding dated 29.06.2017 and by admitting liability issued 9
cheques of Rs.17,96,597/. However, upon presentation of said 9
cheques, with its banker, they were also dishonoured and returned with
remark, 'payment stopped by drawer'. Thereafter, the plaintiff sent
demand notice to defendants, but of no use. Hence, the plaintiff
initiated criminal action against defendants by filling complaint under
section 138 of Negotiable Instruments Act. Thereafter, again the
plaintiff had issued notice claiming balance amount, but defendants
failed to clear the said amount. Hence, the plaintiff constrained to file
the suit.
To substantiate its claim the plaintiff has filed documents such
as; Ledger account along with certificate u/s 65B of Evidence Act
(Exh.12 Colly); Office copies of tax invoice and 01 debit note along with
-- 5 of 8 --
Com. Suit No.717/2022 : 6 : Judgement
certificate u/s 65B of Evidence Act (Exh.13 Colly); Duly acknowledged
delivery challans along with certificate u/s 65B of Evidence Act
(Exh.14 Colly); Original cheques (Exh.15 Colly); 06 Original memos
(Exh.16 Colly); Copy of website of Ministry of Corporate Affairs with
respect to defendant no. 1 and 2 along with certificate u/s 65B of
Evidence Act (Exh.17 Colly); Original Memorandum of Understanding
dated 29/06/2017 (Exh.18); 09 Original cheques (Exh.19 Colly); 09
Original memos (Exh.20 Colly); Office Copy of notice dated 23.02.2019
(Exh.21); 06 Original Postal Receipts (Exh.22 Colly) and 06 Returned
Postal Packets (Exh.23 Colly).
13 Herein it is to be seen that, the plaintiff has filed PreInstitution
Mediation application before DLSA, Mumbai on 14.05.2019, but
defendant failed to appear, hence, the DLSA, Mumbai issued Non
Starter Report dated 15.11.2019. Hence, exemption of said period
needs to be given to the plaintiff in view of provisions of Section 12A
(3) of the Commercial Courts Act. Thus, the suit lodged on 12.03.2020
is well within limitation.
14. Herein it is to be further seen that, in spite of receiving Writ of
Summons defendants failed to appear. Therefore, in view of Order 37
Rule 2 (3) of the Code of Civil Procedure, “if defendants failed to enter
an appearance, then an allegation in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree for any sum not
exceeding the sum mentioned in the summons, together with interest at
the rate specified.”
-- 6 of 8 --
Com. Suit No.717/2022 : 7 : Judgement
15. Therefore, on the basis of oral and documentary evidence the
plaintiff duly proved that the defendants are liable to pay amount of
Rs.16,71,597/. So far as rate of interest is concerned, I am of the view
that looking to the nature of business transaction and current bank rate
of interest, if the defendants are directed to pay the interest @ 9% p.a.,
then it will subserve the purpose. Thus, in view of my above
discussion, I answer to point No.1 is in partly affirmative.
As to Point No.2.
16. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.717 of 2022 is partly decreed with Costs.
2. Defendants do pay jointly and severally an amount of Rs.16,71,597/
with further interest @ 9% per annum from the date of its due till its
full realization.
3. Decree be drawn up accordingly.
4. Commercial Suit No.717 of 2022 disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.10.05.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 10.05.2024
Directly typed on : 10.05.2024
Signed on : 10.05.2024
-- 7 of 8 --
Com. Suit No.717/2022 : 8 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 13.05.2024 NAME OF STENOGRAPHER
TIME: 05.20 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
10.05.2024
JUDGMENT/ORDER signed by
P.O. on
10.05.2024
JUDGEMENT/ORDER uploaded on 13.05.2024
-- 8 of 8 --