Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 460/2020. 1 Ex-parte Judgment.
MHCC010035002020
Presented on : 08-07-2020
Registered on : 26-10-2020
Decided on : 03-02-2021
Duration : 0 years, 6 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 460 OF 2020
Exh.17.
Mr. Sampat Tejraj Parmar )
Adult, Indian Inhabitant, Hindu, )
Age: 58 years, Occupation: Business )
Residing at 302 Vardhman Apartment, )
Shivdas Champshi Marg, )
Near Simandhar Swami Jain Temple, )
Mazgaon, Mumbai – 400 010 )...Plaintiff
Versus
Mr. Haneefa Shajahan )
M/s Shajahan’s Jewellers, )
Adult, Indian Inhabitant, Hindu, )
Age: 63 years, Occupation: Business )
Office Address : Meenakshipuram, )
Post: Nagercoil, District: Kanyakumari, )
Tamil Nadu – 629 001 )
Residing at New No. 1161, Old No. 3163, )
Hanifa Nagar, Cape Road, )
Post: Nagercoil, District: Kanyakumari, )
Tamil Nadu – 629 001 )...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 3rd FEBRUARY, 2021.
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Comm.Suit No. 460/2020. 2 Ex-parte Judgment.
Ms. Prachi Jain with Mr. Sandeep Kekane, Advocate for Plaintiff.
None for Defendant. (Exparte).
EXPARTE JUDGMENT
This is a suit for recovery of Rs.43,68,103/ (Rupees Forty
three Lakhs Sixtyeight Thousand One Hundred Three Only) based on
invoices, confirmation letter and ledger account.
Plaintiff’s case is narrated as follows :
2. Plaintiff and defendant are dealing in the business of gold
jewellery. Plaintiff runs a business in the name and style of ‘M/s. Dhriti
Gold’ at 19, Tel Galli, Kalbadevi Road, Mumbai02. Plaintiff knows the
defendant since 9 years as an old customer. Defendant runs a business
under the name and style of ‘M/s. Shajahan Jewellers’ at Nagercoil,
Tamilnadu.
3. In view of order placed by the defendant, plaintiff had
supplied the gold ornaments on 04/05/2015 weighing 1528.860 grams
(152.89 Tola). In view of the invoice dated 04/05/2015 at the relevant
time it was valued for Rs.43,93,103/ (Rupees Fortythree Lakhs Ninety
three Thousand One Hundred Three Only). On 12/05/2015 defendant
has made a part payment of Rs.25,000/ (Rupees Twentyfive Thousand
Only) by RTGS. In view of a condition mentioned in the bill, it was
agreed to pay the interest at the rate of 24% p.a. Defendant had sent a
confirmation letter dated 12/07/2017 in respect of balance amount.
However, defendant is failed to repay the amount as agreed.
4. Plaintiff has addressed a notice through Adv. Dhavale on
08/01/2018. The legal notice is sent by Adv. Prachi Jain on
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Comm.Suit No. 460/2020. 3 Ex-parte Judgment.
09/06/2020. It was duly served on defendant by R.P.A.D. It was
remained unreplied. Hence, this suit.
5. During pendency of the suit, defendant replied the notice
through Adv. Prem Kumar of Nagercoil on 09/07/2020. It is contended
that defendant has received the ornaments in damaged condition and
after repeated complaints by the defendant, staff member of the
plaintiff has collected the ornaments from the office of defendant.
Therefore, it is urged that nothing remained due towards defendant.
6. In view of roznama dated 08/01/2021, summons is duly
served on defendant. He failed to appear. Hence, suit is proceeded ex
parte.
7. PW 1 Sampat Parmar deposed vide Exh.6. According to
PW 1, he knows the defendant being old customer. In view of tax
invoice vide Exh.8, plaintiff has delivered the gold ornaments bearing
weight 1528.860 grams. In view of relevant rate of gold, it was valued
for the amount of Rs.43,93,103/ (Rupees Fortythree Lakhs Ninety
three Thousand One Hundred Three Only). It is admitted by PW 1 that
in view of the bank statement, plaintiff has received the RTGS of
Rs.25,000/ (Rupees Twentyfive Thousand Only) from Shajahan
Jewellers on 12/05/2015. In view of confirmation on the letterhead of
Shajahan Jewellers dated 12/07/2017 defendant has accepted the due
amount of Rs.43,68,103/ (Rupees Fortythree Lakhs Sixtyeight
Thousand One Hundred Three Only). Perused notice vide Exh.11 dated
08/01/2018. Perused notice vide Exh.12 issued by Adv. Jain dated
09/06/2020. In view of postal receipts vide Exh.13, legal notice has
been served on defendant.
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Comm.Suit No. 460/2020. 4 Ex-parte Judgment.
8. According to learned advocate for plaintiff, after
submission of the suit, defendant has replied the notice through Adv.
Prem Kumar dated 09/07/2020. It is surprising to note, defendant has
not clarified when he intimated the plaintiff in respect of physically
damaged condition of the ornaments. There is no notice in writing
issued by the defendant in respect of damaged condition of the
ornaments.
9. In para 6 of the reply vide Exh.15, it is mentioned that
some staff member of plaintiff has collected the ornaments from the
defendant. It is amazing to note, no name of the staff member is
mentioned. Defendant is failed to mention on which date the staff
member of plaintiff has collected the ornaments. Defendant is failed to
obtain any acknowledgement from the concern staff. The impugned
goods in suit transaction are gold ornaments valued in lakhs of rupees.
Therefore, there are grounds to believe that without any foundation
defendant has created fabricated grounds in reply vide Exh.15.
10. In result, suit deserves to be decreed. Learned advocate
Prachi Jain for plaintiff submits that ornaments were given to the
defendant in the year 2015 when the gold rate was below 30,000
rupees. However, present rate of gold is above Rs.50,000/. There is
no rate of interest claimed by the plaintiff from 2015 to 2020 as plaintiff
had no amount to pay the court fees. However, it is prayed for the
agreed interest at the rate of 24% as mentioned in the condition of the
bill. Considering nature of transaction and submission of learned
advocate for plaintiff, the interest at the rate of 15% from the date of
suit appears to be reasonable. Hence, the order :
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Comm.Suit No. 460/2020. 5 Ex-parte Judgment.
ORDER
1. Suit is decreed with cost.
2. Defendant shall pay an amount of Rs.43,68,103/ (Rupees
Fortythree Lakhs Sixtyeight Thousand One Hundred
Three Only) with interest @ 15% p.a. from the date of suit
till realization, within two months from the date of decree.
3. Decree shall be drawn accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 03/02/2021. Mumbai.
1. Dictated on : 03/02/2021.
2. Transcribed on : 04/02/2021.
3. Signed on : 05/02/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/02/2021. 3.42 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 03/02/2021.
Judgment/Order signed by P.O. on 05/02/2021.
Judgment/Order uploaded on 06/02/2021.
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