Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010036262018
Presented On :- 15.03.2018
Registered On :- 18.04.2018
Delivered On :- 13/08/2021
Duration :- Y-03/M-05/D-00
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 501 OF 2018
EXHIBIT-22
M/s. Padmavati Corporation, a Proprietary Firm
Through its constituted attorney Mr. Advait Jayprakash
Keni, An Indian Inhabitant, aged about 30 years
Having its registered office at 5/Porwal Niwas,
Bhattipada Road, Opp A to Z book store, Bhandup (W),
Mumbai-400 078 …. Plaintiff
V/s
1. M/s. Recon Civil Engineers, a Proprietary Firm
2.Prakash Haribhau Nalavade (Proprietor of
Def.No.1) Both having address at : Nalavade House,
D/157, Nr. Jain Mandir, R.c. Marg, Chembur,
Mumbai-4000 71 ….. Defendants
SUIT FOR RECOVERY OF Rs.4,90,903/-
Appearance:-
Adv. Mr. Keshav Kothare for the Plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
CITY CIVIL COURT
GR.MUMBAI,(C.R. NO.61).
DATE : 13/08/2021
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J U D G M E N T
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
2. The facts of the suit are summarized as under :-
The plaintiff is a sole proprietary firm & Sole Proprietor
being Mr. Jitendra Jain, in the name of M/s. Padmavati Corporation
dealing in the business of building materials etc i.e. Biltech Building
Elements, Dealers & StockistL Siporex India Ltd., Neeru, P.O.P and all kinds
of building materials has duly authorized Mr. Advait Jayaprakash Keni. The
defendant No.2 is the proprietor of defendant No.1. Defendant Nos.1 and
2 are in the business of construction materials, etc and is running a
proprietorship firm in the name of Recon Civil Engineers. Defendant No.2
approached the plaintiff for buying Siporex Blocks for his business
purposes. Thereafter, the plaintiff duly supplied building materials i.e.
Siporex Blocks to the defendants and for the said supplies defendants had
not paid the payments as per the invoices bearing Nos. 634, 702, 767, 819,
831, 873, 936, 1007 to the plaintiff till date. After the receipt of the said
goods and invoices , defendants accepted the said goods without demur
and protest as per its quality, quantity or price for the purchases and for
the said receipt of goods. The defendants issued cheque bearing No.
077803 dated 14.04.2016 for Rs.1,17,810/- towards invoice Nos. 834 and
702. But said cheque got dishonored with reasons “ Funds Insufficient”.
Defendants failed to pay outstanding dues of Rs.4,83,551/-. Thus, the
plaintiff sent notice dated 23/03/2017 and 29/12/2017 to the defendants.
Hence, plaintiff is constrained to file the suit for recovery of the said
amount. The total suit claim of the plaintiff for Rs.4,90,903/-.
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3. The suit summons were duly served on the defendant but he
failed to appear. Hence, suit is posted for judgment as per order XXXVII
Rule 2 (3) of Code of Civil Procedure 1908.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
POINTS FINDINGS
1 What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.4,90,903/- with
interest
@ 21 % per annum.
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to prove the case of the plaintiff filed following
documentary evidence
Exhibit
No.
Description of documents Date
4 Copy of Power of Attorney 15/06/2017
5 to 13 Invoices Nos. 634,702,767,819, 831,873,
936, 1007
14 Delivery Challans
15 Cheque 14/04/2016
16 Bank return memo 16/04/2016
17 colly Notices 23/03/2017 and
29/12/2017
18 colly Original postal receipts
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AS TO POINT NO.1 :-
6. All the documents produced by the plaintiff at Exhibit No.4 to
18 goes to establish that plaintiff has supplied the goods of Rs.4,83,551/-to
the defendants. The documents further prove that the amount of
Rs.4,90,903/-is due and payable to the plaintiff from defendants. The
defendants have failed to repay the said amount to the plaintiff. The
documents at Exhibit No.4 to 18 goes to establish that the defendants are
liable to pay Rs.4,90,903/-to the plaintiff on the date of filing of the suit
towards the said amount and therefore, the defendants have failed to
repay the said amount to the plaintiff. In this background, it is held that
plaintiff is entitled to recover sum of Rs.4,90,903/- from the defendants.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceeds 6% per annum, if the transaction is commercial and
there is no contract pertaining to the same between the parties. In the
present case, the transaction is commercial one and there is contract
existing between the parties as to the rate of interest which shall be levied.
Therefore, the transaction is a commercial one and rate of interest @ 21%
per annum would be just and proper to be awarded on the principal sum
adjudged i.e. amount of Rs.4,90,903/-. Hence, point No.1 is answered in
the affirmative.
AS TO POINT NO.2 :
8. In view of discussion and finding on point No.1, it is held that
plaintiff is entitled to recover Rs.4,90,903/-. from the defendant with
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interest at the rate of 21% per annum from the date of filing of the suit till
its realization. Plaintiff is also entitled to recover cost of the suit from
defendants. Hence, in answered to point No.2, I proceed to pass the
following order.
O R D E R
1. The defendants jointly and /or severely shall pay
Rs.4,90,903/-(Rs. Four Lakhs Ninety Thousand Nine
Hundred Three Only) to the plaintiff with interest at the rate
of 21% per annum from the date of filing of the suit till its
realization.
2. Defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per rule.
4. Decree be drawn accordingly.
Date :13/08/2021 (Smt. S. G. Shaikh)
Judge, City & Civil Court,
Gr. Bombay
Dictated on :13/08/2021
Typed on :13/08/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.08.2021 04.00 p.m, ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13/08/2021
JUDGMENT/ORDER signed by
P.O.on
13/08/2021
JUDGMENT/ORDER uploaded on 13/08/2021
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