Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit No. 1080/2021
MHCC010033192020 Presented on : 17/3/2020
Registered on : 22/6/2021
Decided on : 07/7/2022
Duration : 01Y 0M 15D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No. 1080 OF 2021
BHAVDEEP SWITCHGEARS
Through its Proprietor Mr. Shivratan
Shrma, 150, Ashoka Shopping Centre, 2nd
Floor, L.T. Marg, Mumbai 400 001.
}
}
}
} ...PLAINTIFF
VERSUS
M/s MANISH ARTS
B – 41, Madhav Bhuvan, 1st Floor, Dr. B.R.
Ambedkar Road, Parel, Mumbai 400 012
}
}
} ...DEFENDANT
Mrs. Priyank Shah, learned Advocate I/B Equity Legal for
plaintiff.
Defendant exparte.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 07/07/2022)
This is a suit for recovery of sum of Rs.2,16,566/ and
accrued interest of Rs.2,45,514/ calculated @ 24% p.a.
2. It is case of plaintiff that it is a proprietary partnership firm
running business of manufacturing and trading electrical appliances.
Defendant is a proprietary partnership firm having business of electrical
contractor. In the normal course of business defendant placed orders
with plaintiff for supply of electrical goods. Plaintiff sold, supplied and
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2 Comm. Suit No. 1080/2021
delivered goods of Rs.2,76,566/ to defendant and prepared invoices for
a period of 20142015. Defendant has accepted the delivery of good
without raising any dispute. Defendant has made payment of
Rs.1,90,000/. He has issued three cheques dt.1/11/2016 of
Rs.1,00,000/, 1,00,000/ & 76,566/ respectively towards balance
outstanding to plaintiff. However, the said cheques dishonored.
Therefore, on 25/11/2016 plaintiff has issued notice through advocate
to defendant, calling upon him to pay sum of dishonored cheques but
defendant ‘refused to accept’ the said notice. Hence, plaintiff made
several correspondences with defendant. He agreed to clear dues and
accordingly he paid part payment of Rs.30,000/on 29/12/2016 and
further assured to pay the balance amount of Rs.2,16,566/ within short
period.
3. Defendant has not paid balance outstanding amount and
hence, plaintiff issued legal notice dt.24/1/2018 calling upon him to
make payment together with interest @2% p.m. but he refused accept
the notice. Again on 3/7/2018 plaintiff issued him legal notice and
called upon him to pay outstanding sum of Rs.3,97,370/ with interest
@2% p.m. It also returned with postal remark “closed”. Thereafter,
plaintiff tried to serve the said notice through Vichare Courier but it
returned with remark “person shifted”. Defendant is liable to pay
principal amount of Rs.2,16,566/ + interest of Rs.2,45,514/
calculated @ 24% p.a. as under :
Invoice date Invoice no. Amount
received
Balance amount
12.12.2014 09531/1415 34,673/ 34,673/
12.12.2014 09533/1415 29,765/ 28,745/
12.12.2014 09534/1415 29,683/ 29,683/
27.12.2014 09653/1415 31,282/ 31,282/
27.12.2014 09654/1415 11,454/ 11,454/
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3 Comm. Suit No. 1080/2021
18.2.2015 10024/1415 56,668/ 56,668/
18.2.2015 10026/1415 24,061/ 24,061/
Total 2,17,586/ 2,16,566/
4. Defendant served with suit summons but did not appear.
Hence, suit proceeded exparte against it as per order dtd.26/10/2021.
5. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether plaintiff proved that it had sold,
supplied & delivered goods to defendant? …Yes
2. Whether plaintiff proved that principal
amount of Rs.2,16,566/is due and payable
by defendant?
If yes, at what rate of interest?
…Yes @ 18%p.a.
3. Whether plaintiff proved that interest of
Rs.2,45,514/ calculated @ 24% p.a. is due
and payable by defendant ?
…Yes,
Rs.1,84,385/ @
@ 18% p.a.
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT No.1 To 3:
6. Heard learned counsel of Plaintiff. Plaintiff has examined
its Proprietor (PW1 Shivram Sharma) to prove its case. He reproduced
all content of plaint in his chiefexamination. His evidence is supported
by documentary evidence Exh.9 to 17 : i) Ledger statements of
defendants for financial year 201415, ii) Cheque dt.01.11.2016 bearing
No.484478 drawn on Bank of India, Dadar Branch, Mumbai together
with Original Bankers Memo, iii) Cheque dt.01.11.2016 bearing
No.484479 drawn on Bank of India, Dadar Branch, Mumbai together
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4 Comm. Suit No. 1080/2021
with Original Bankers Memo, iv) Cheque dt.01.11.2016 bearing
No.484480 drawn on Bank of India, Dadar Branch, Mumbai together
with Original Bankers Memo, v) Envelope containing legal notice
dt.25.11.2016 together with the office copy of the legal notice
25.11.2016 addressed to the defendants, vi) Bank Statement certified
by the Kotak Mahindra Bank Ltd., Crawford Market Branch thereby
evidencing the credit entry of Rs.30,000/ towards cheque No.484482
dt.30.12.2016 issued by the defendants, vii) Bank Statement certified
by the Kotak Mahindraf Bank Ltd., Crawford Market Branch thereby
evidencing the credit entry of Rs.30,000/ towards cheque No.484487
dt.07.02.2017 issued by the defendants, viii) Envelope containing legal
notice dt.03.07.2018 with remarks “Closed” together with the office
copy of the legal notice, ix) Envelope containing legal notice
dt.03.07.2018 with remarks “Person Shifted” alongwith the booking
receipt issued by Vichare Courier, x) Office copy of outstanding invoices
which bears the signature of the Mr. Mohan Sutar, the Proprietor of the
Defendant firm.
7. Defendant did not appear inspite of service of suit
summons. Evidence of plaintiff remained unchallenged which is
supported by aforementioned documentary evidence. There is no reason
to disbelieve his testimony. Hence, plaintiff succeed to establish that
amount of Rs.2,16,566/ is due and payable by the defendant to
plaintiff. As far as pre suit interest of Rs.2,45,514/ calculated @
Rs.24% p.a. is concerned, it seems that there is no written agreement
between parties about the rate of interest. The rate of interest is
mentioned invoices in terms column. It shows interest @ 24% p.a. will
be charged if bill are not paid within 45 days. Learned counsel of
plaintiff relied on case laws of Satish Chand Vs. Bal Kishan, FAO
No.224/2017 and CM No.1890818910/2017 dtd.19/05/2017 of
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5 Comm. Suit No. 1080/2021
Hon’ble Delhi High Court. In the said case law there was receipt cum
Ikrarnama dtd.25/12/2012. However, in the present case in my hand ,
there is no receipt/agreement about rate of interest.
8. On the point of rate of interest in commercial transaction,
Hon’ble Delhi High Court in a case of Sasumorov Enterprises Private
Limited V/s. Odeon Builders Pvt. Ltd, CS(Comm) 927/2016
dtd.16/11/2018, observed and held, “as far as the claim of the plaintiff
for the relief of pre suit, pendente lite and future interest @24% p.a. is
concerned, though undoubtedly the invoices of the plaintiff on
defendant contain a clause to the said effect but considering the
prevalent rates of interest, even quacommercial transactions the claim
for interest @ 24% p.a. is found to be excessive. The plaintiff is found
entitled to pre suit interest @ 15% p.a., from expiry of 60 days of the
date of each of the invoices and till the date of institution of the suit and
is avoided interest pendente lite and future @ 9% p.a.”
9. In view of aforesaid case law, considering entire facts and
prevailing market rate of interest, it is desirable to grant interest at the
rate of 18 % p.a. Hence, as per the said rate plaintiff is entitled for
interest amount of Rs.1,84,135/ instead of Rs.2,45,814/. Thus,
plaintiff is entitled for recovery of Rs.4,00,701/ and future interest @
of 18% p.a. on principle sum of Rs.2,16,566/ from date of filing of
suit till realization of amount. Thus, I answered point Nos. 1 to 3 as
above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to plaintiff the amount
of Rs.2,16,566/ with interest @ 18% p.a. from the date
of suit till realization of the said amount.
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6 Comm. Suit No. 1080/2021
3. Defendant is directed to pay the plaintiff pre suit accrued
interest of Rs.1,84,135/
4. Decree be drawn up accordingly.
Date : 07/07/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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7 Comm. Suit No. 1080/2021
Dictated on : 07/07/2022.
Checked on : 07/07/2022.
Signed on : 07/07/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07/07/2022. Mrs.Rupali S. Bhor
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 07/07/2022.
Order signed by P.O. on 07/07/2022.
Order uploaded on 07/07/2022.
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