Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Received on : 19.03.2018
Registered on : 06.04.2018
Decided on : 11.10.2021
Duration : 03Y 06M 22D
EXHIBIT8
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SHORT CAUSES SUIT NO. 1016 OF 2018
( CNR No.MHCC010037442018)
VAGTARAM JETAJI PRAJAPAT ]
Aged 54 years, Indian Inhabitant ]
Proprietor of M/s. Nageshwar ]
Textiles, At 448, BBlock, 2 nd floor, ]
Bhangwadi, Kalbadevi Road, ]
Mumbai 400 002. ].. Plaintiff.
V/s.
JAHID MOMIN, Adult ]
Proprietor of M/s. NewLucky Ladies ]
Fashion Home, S.T. Stand Road, ]
Islampur, Dist. Sangli415409 (M.S.) ]..Defendant.
Advocate Mr. D.M. Purohit for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 11th OCTOBER, 2021
JUDGMENT
The suit is instituted for the recovery of amount of Rs.
37,900/ along with interest at the rate of 24% per annum on the said
-- 1 of 6 --
2
amount from the date of installation of the suit to realisation of the
decreetal amount.
2. It is the case of plaintiff that plaintiff is carrying on business
in the name of M/s. Nageshwar Textiles. The defendant is a proprietor
of M/s. Newlucky Ladies Fashion Home. The plaintiff and the defendant
both are involved in sale and purchase of textile goods.
3. It is the case of the plaintiff that the defendant placed a
oral order with the plaintiff and the plaintiff sold, supplied and
delivered textiles goods to the defendant under two bills;
BILL NO. DATE AMOUNT
257 13.02.2015 24,200/
195 26.10.2015 24,200/
46,400/
4. The plaintiff had delivered the said goods through Sapna
Roadways under transport receipt Nos.82076 and 131334 dated
14.02.2015 and 29.10.2015 respectively. After delivery of the said
goods, the defendant did not raise any objections of any nature
whatsoever as regards quality, quantity and rate etc. The defendant
had agreed to make the payment of bills within 60 days from the date
of bill and if defendant fail to pay the same than defendant agreement
to pay interest at the rate of 24% per annum on delay payment.
5. It is the case of the plaintiff that the defendant made part
payment of Rs.1,500/ by cash on 05.07.2015 and Rs.2,000/ by cash
on 17.11.2015 and further returned goods of Rs.5,000/ on 08.12.2015
through S.T. Transport, total Rs.8.500/ towards aforesaid dues.
-- 2 of 6 --
3
However, as the defendant did not pay the balance amount due to
plaintiff for a long period, plaintiff issued a letter through his advocate
on 10.02.2018 by R.P.A.D. Defendant received the said letter, but he
failed and neglected to pay any amount. Hence, plaintiff was
constrained to institute the present suit.
5. Defendant was duly served with the writ of summons.
However, it failed to appear before the court. Hence, the suit
proceeded ex parte against the defendant as per the order of my learned
predecessor dated 17/01/2019.
6. Considering the plaint, documents on record and
submissions of learned advocate for plaintiff, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff is entitled to recover the
amount of Rs. 37,900/ along with interest
thereon from 10.02.2018 till the realisation
of the total decreetal amount at the rate of
24% per annum?
Partly In the
Affirmative
2 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NO.1 :
7. Plaintiff has filed affidavit of evidence at Exhibit3 . It
supported the contents of the plaint. Plaintiff has produced on record
the Office copies of two bills are at Exhibit5 colly . Plaintiff has
-- 3 of 6 --
4
produced on record office copies of two transport receipts are at
Exhibit6 colly . A copy of demand notice issued by plaintiff to
defendant is produced on record at Exhibit7 . It is dated 10/02/2018.
Post acknowledgement is also produced on record. All these documents
are proved by the witness for plaintiff in his oral evidence.
8. The defendant was having ample opportunity to appear
before the court and file his defence and contest the suit. However, for
the reason best known to the defendant, he has avoided to appear
before the court and contest the suit. Therefore, the oral and
documentary evidence produced by plaintiff on record is unchallenged.
9. In the circumstances above I have come to the conclusion
that the plaintiff has proved that the amount of Rs.37,900/ was due to
plaintiff from the defendant. Plaintiff has proved that defendant failed
to pay that amount in spite of return demand. Therefore, plaintiff is
entitled to get that much amount from the defendant.
10. Plaintiff has claimed interest at the rate of 24% per annum
on the said amount. However, there is no basis for claiming interest at
such exorbitant rate. Though there is a condition in the invoice that
after due date interest at the rate of 24% will be charged, this condition
is unilateral condition and therefore, it cannot be said that it is binding
upon the defendant as it is. However, as the defendant has defaulted in
payment, he is liable to pay interest. Considering the current rates of
lending, I have come to the conclusion that interest at the rate of 12%
per annum is sufficient in the present matter. Accordingly, I answer
point No. 1 in the affirmative and in answer to point No. 2, proceed to
pass following order.
-- 4 of 6 --
5
O R D E R
1. Suit is partly decreed with costs.
2. Defendant is directed to pay the amount of
Rs.37,900/ to plaintiff along with interest thereon
at the rate of 12% per annum from 10.02.2018 to
the realisation of the total decreetal amount within
60 days from the date of this order.
3. Decree be drawn up accordingly.
4. The Court fee be refunded in appropriate
proportion and as per entitlement to the plaintiff.
5. Short Cause Suit No. 1016 of 2018 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:11.10.2021 Gr.Mumbai.
Dictated on: 11.10.2021
Typed on : 21.10.2021
Signed on : 26.10.2021
-- 5 of 6 --
6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26.10.2021 AT 3.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
11.10.2021
Judgment/Order signed by P.O. on 26.10.2021
Judgment/Order uploaded on 26.10.2021
-- 6 of 6 --