Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010035872018
Presented on
14-03-2018
Registered on 19-04-2018
Decided on 10/12/20
Duration Yrs. M. Days
02 08 27
CNR No. MHCC010035872018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SHORT CAUSE SUIT NO.1148 OF 2018
M/S. NEW MANAK METALLDYS LIMITED PVT. LTD.
Formerly known as
Manak Metalloys Limited
Having address at Manak House
2nd Floor, 44, C.P. Tank Road,
Mumbai – 400 004. ...Plaintiff.
V/s.
MR. PRABHURAM VAGAJI PRAJAPATI
An adult, aged about 43 years
Proprietor of M/s. Bombay Metal India,
having address at,
52/52A, Islampura Street
Nanubhai Desai Road, V.P. Road,
Mumbai – 400 004. ....Defendant.
Appearances:
Ld. Adv Mr. S.R. Maurya for plaintiff.
None present for defendants.
Suit proceeded ex-parte against defendants.
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CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.20)
DATED : 10th December, 2020
J U D G M E N T
(Ex-parte)
1. This is a suit for recovery of amount of Rs.2,73,045/- and
interest thereon.
2. In brief, it is contention of the plaintiff that, plaintiff is a
Limited Company. Registered under the provisions of the Companies
Act, 1956. It carries on business as Stockist and Dealer of Ferrous and
Non-Ferrous Metals and Steel Merchant. It also deals with other
Industrial Raw Materials. The defendant is Prprietor of M/s. Bombay
Metal India.
3. Plaintiff sold and delivered “S.S/Industrial Raw materials
which is specifically mentioned in various invoices to the defendant.
The Invoices are set out in the Ledger Account for the year commencing
from 01.04.2016 to 31.03.2017 and 01.04.2017 to 31.01.2018. The
defendant without raising any dispute of whatsoever nature like
quality, quantity and/or rates etc. accepted, acknowledged and
consumed the material.
4. The defendant used to make part payments in lumpsums.
Defendant last made part payments of Rs.7,00,000/- on 24.06.2016
leaving behind a principle sum of Rs.1,97,100/-.
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5. Defendant did not pay the said outstanding amount of
Rs.1,97,100/-. Plaintiff issued Notice through Advocate dated
04.12.2017 and called upond defendant to pay the said amount but in
vain. Therefore plaintiff is entitled to charge interest on the said
outstnading amount. The rate of interest at the rate of 24% per annum
is mentioned on the plaintiffs Tax invoices. Interest is due against the
defendants for 586 days from 25.06.2016 to 31.12.2017. Plaintiff is
also entitled to charge interest at the rate of 24% per annum on the
outstanding amount of Rs.1,97,100/- from the date of filing the suit till
its full realization. Therefore, suit be decreed as prayed for.
6. Defendant inspite of service of writ of summons did not
appear. Therefore the suit is proceeded Ex-parte against the defendant
as per Roznama / Noting dated 02.11.2018. Plaintiff examined P.W.1
Sangeet Dhanraj Mehta. He filed evidence affidavit as P.W.1 vide Exh.4.
Thereafter plaintiff closed evidence. I have heard Learned Advocate
Shri Maurya for plaintiff.
7. Plaintiff examined P.W.1 Sangeet Dhanraj Mehta. He filed
evidence affidavit vide Exh.4 as P.W.1. Following documents are marked
as exhibit in the evidence of P.W.1. They are at Exh.6 to 13.
Ex. Sr.No. Particular
6 1 Extract of plff board resolution dt. 04/12/2017.
7 2 Plff tax invoice no.SA/C/00023 dt. 03/05/2016.
8 3 Plff original extract of ledger statement of account for
the period of 01/04/2016 to 31/03/2017,
04/04/2017 to 31/01/2018.
9 4 Plffs bank statement of account (account
no.22505824422) for the period of 01/06/2016.
10 5 Office copy of demand notice dt.04/12/2017.
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11 6 Registered post receipts dt.05/12/2017.
12 7 Acknowledgement card.
13 8 Certificate under section 65(b) of evidence act.
8. P.W. 1 Sangeet Dhanraj Mehta deposed in his evidence
affidavit that plaintiff has Authorized him vide plaintiffs Board
Resolution dated 04.12.2017 to sign, affirm, verify and give evidence in
this matter.
9. P.W.1 Sangeet Mehta further deposed in his evidence that
plaintiff in regular course of business and as per Order placed by the
defendant, the plaintiff sold and delivered “S.S./ Industrial Raw
materials” i.e. “S.S. Sheet/ plate vide plaintiff's Tax Invoice
No.SA/C/00023/15-16 dated 03.05.2016 for Rs.19,97,100/-. The
defendant made part payments of Rs.7,00,000/- on 24.06.2016 by
R.T.G.S. leaving behind a balance principle amount of Rs.1,97,100/-.
10. P.W.1 Sangeet Mehta further deposed in his evidence
affidavit that defendant did not pay the said outstanding balance
amount of Rs.1,97,100/- for long time, therefore, plaintiff issued Notice
dated 04.12.2017 through plaintiff’s Advocate and thereby called upon
defendant to pay the said outstanding amount of Rs.1,97,100/-
alongwith interest. Defendants failed to pay the said principle amount
and interest. Therefore suit be decreed as per particular of claim i.e
Exh.”C” annexed with the plaint. In this way P.W.1 deposed as per
averments of the plaint. Perused plaint and Exh.”C” annexed with the
plaint. Plaintiff claimed outstanding amount of Rs.1,97,100/- with
interest at the rate of Rs.24% per annum from 25.06.2016 to
31.12.2017 for 586 days. In this way plaintiff claimed principle amount
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of Rs.1,97,100/- + interest Rs.75,945/- calculaed at the rate of 24%
per annum from 25.06.2016 to 31.12.2017 i.e. for 586 days. In this
way plaintiff has claimed total amount of Rs.2,73, 045/-. Plaintiff has
also prayed to direct the defendant to pay further interest at the rate of
24% per annum on the principle outstanding amount of Rs.1,97,100/-
from the date of filing the suit i.e. from 24.03.2018 till its ful
realization.
11. The suit is proceeded ex-parte therefore, there is no
challenged to the contention of the plaintiff’s witness No.1. There is
nothing on record to discard the testimony of palintiff that amount of
Rs.1,97,100/- is outstanding against the defendant and payable to the
plaintiff.
12. Perused plaintiff’s Tax Invoice Exh.7. It is dated
03.05.2016. Material of Rs.19,97,100/- is sold to the defendant.
13. It is specifically mentioned in para No.4 of the plaint that
interest at the rate of 24% per annum as provided on plaintiffs Tax
Invoices. Plaintiff has filed only one Tax invoice vide Exh.7. I have
gone through the invoice Exh.7 carefully. There is no such clause
regarding interest at the rate of 24% per annum. If for a movement, it
is presumed that there is such clause of interest at the rate of 24% per
annum on outstanding amount in that contingency it does not mean
that defendant has agreed to pay outstanding amount at the rate of
24% per annum. There is no document on record to show that
defendant agreed to pay interest at the rate of 24% per annum on
outstanding amount.
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14. Perused Section 34 of the Code of Civil Procedure. It states
where and in so far as a decree is for the payment of money, the Court
may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of
the suit to the date of the decree, in addition to any interest adjudged
on such principal sum for any period prior to the institution of the suit,
with further interest at such rate not exceeding six percent per annum,
as the Court deems reasonable on such principal sum, from the date of
the decree to the date of payment, or to such earlier date as the Court
thinks fit;
15. The proviso of Section 34 of the Code of Civil procedure
states that where the liability in relation to the sum so adjudged had
arisen out of a commercial transaction, the rate of such further interest
may exceed six percent per annum, but shall not exceed contractual
rate of interest or where there is no contractual rate, the rate at which
moneys are lent or advanced by Nationalized Banks in relation to
Commercial transactions.
16. The date of invoice Exh,07 is 03.05.2016. Suit is filed on
14.03.2018. In this way the suit is filed within three years from the
date of the said invoice and within three years from last part payment
of Rs.7,00,000/-. Therefore, the suit is filed within the Limitation Act.
Hence, in the facts and circumstances, plaintiff is not entitled to charge
interest at the rate of 24% per annum on the said outstanding amount.
The plaintiff is entitled to charge interest at the rate of 9% per annum
from 25.06.2016 on outstanding amount of Rs.1,97,100/- till its full
realisation. Hence, I proceed to pass the following order.
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ORDER
The Suit No. 1148 of 2018 is partly decreed with costs as under-
1. The defendant do pay to the plaintiff Rs.1,97,100/- (Rs. One Lakh
Ninety Seven Thousand One Hundred only) with interest at the rate of
09 percent per annum from 25-06-2016 on amount of Rs.1,97,100/- till
its full realization.
2. Decree be drawn up accordingly.
R and P be sent to Record Department.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 10/12/2020 City Civil Court, Gr. MUMBAI
Dictated on : 10/12/2020
Transcribed on : 21/12/2020
Checked on : 22/12/2020
and Signed on : 22/12/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.12.2020 at 04.45 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 10.12.2020
Judgment/order signed by P.O. on 22.12.2020
Judgment/order uploaded on 22.12.2020
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