Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 21.03.2018
Registered on 27.03.2018
Decided on 14.02.2019
Duration Yrs. M. Days
10 18
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO.877 OF 2018
UNITOP CHEMICALS PVT.LTD.
A limited company incorporated and
registered under the Companies Act, 1956
having its Corporate Office at Unitop House,
East West Estate, Safed Pool, AndheriKurla
Road, Mumbai400 072. ...Plaintiff.
V/s.
MOHINI AUXICHEM PVT LTD.
A limited company incorporated and
registered under the Companies Act,1956,
having its registered office at B11, here
Krishna Complex, Opp. Apsara Cinema,
Kankaria, Maninagar, Ahmedabad380028
Interalia Factory Address at 8, M.G. Estate,
M.G. Textile Lane, Opp. Cozy Hotel,
Shahwadi, Narol, Ahmedabad380 028. ...Defendant.
Appearances:
Ld. Adv Mr.Sanjay Palekar and Adv.Mr.O.Sankaran for plaintiff.
None for defendant. Hence, suit proceeded exparte against defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 14th February,2019
MHCC01-003889-2018
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J U D G M E N T
(Exparte)
This is a suit for recovery of Rs.34,88,704/ with interest.
2. In short, plaintiff came with a case that, plaintiff is a private
limited company, duly registered under the Companies Act,1956 having
its Corporate Office at the address mentioned in the title clause and
engaged in the business of manufacturing and trading of various types
of chemicals such as Emulsifiers, Cosmetic Chemicals, Agrochemicals
and Additives. Defendant is a private limited company engaged in the
business of Industrious Chemicals and allied products and carrying on
its business at the address given in the title clause of plaint.
3. Plaintiff submitted that, plaintiff and defendant agreed between
themselves that plaintiff would supply various types of chemicals to
defendant in accordance with the order of and instructions given by
defendant. It was also agreed that accounts would be taken from time
to time as regards the price of goods supplied by plaintiff to defendant.
It was further agreed that upon receipt of invoices, defendant would
release payments to plaintiff either on account or invoicewise and
thereafter, balance due to any party would be paid either by cheque or
by demand draft or by cash at the closing of each financial year.
4. Plaintiff submitted that, in the terms of arrangement, defendant
from time to time placed orders from different varieties of chemicals in
between from 06.04.2016 to 11.06.2016. Defendant used to make pat
payments of their dues, on account of purchase made from time to
time. However, defendant stopped all the transactions on credit
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purchase with effect from 11.06.2016 and thereafter, only used to make
part payments towards the outstanding dues of defendant to plaintiff.
As on 11.06.2016 as per books of accounts defendant was liable to pay
an amount of Rs.35,61,641/. Plaintiff issued Credit Note No.5004 on
24.08.2016 for Rs.3,67,322/ as defendant rejected and returned the
goods and adjusted Rs.3,67,322/.
5. Plaintiff submitted that, since payment was not forthcoming,
plaintiff again contacted defendant and requested to make payments at
least by installments. After lot of persuasion, defendant agreed to make
payment by installments and issued twelve cheques drawn on Kotak
Mahindra Bank aggregating to Rs.31,94,319/. Plaintiff accepted the
said twelve cheques and deposited with their bankers on their
respective dates. However, said cheques returned unpaid with remarks
“Funds Insufficient”. Therefore, plaintiff issued legal notice on
20.05.2017 intimating defendant about dishonour of cheques.
Defendant gave reply through its Advocates' letter dt.20.06.2017 and
vaguely disputing the liability and falsely contending that cheques in
question were issued as a security and not towards any liability. For
which plaintiff clarified the position by giving a 'Rejoinder Notice'
dt.10.07.2017. Defendant again gave vague reply dt.03.08.2017. The
Directors of defendant orally informed plaintiff that they are arranging
to make the payment against the dishonured cheques within a period of
one month.
6. Plaintiff submitted that, after dishonour of cheques defendant
made partpayment of Rs.1,50,000/ by RTGS on 11.04.2017. However,
thereafter, defendant has not made any payment. Therefore, after
adjusting Rs.1,50,000/ defendant is again liable to pay Rs.30,44,319/.
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As defendant failed to pay the said amount, plaintiff issued Legal Notice
dt.13.02.2018 calling upon defendant to make payment of
Rs.30,44,319/ with interest. In spite of receipt of notice defendant did
not make the payment outstanding due against it. Therefore, plaintiff
filed this suit against defendant for recovery of amount.
7. Writ of summons came to be issued to defendant. Plaintiff filed
service affidavit at Exh.2. In spite of service of writ of summons none
appeared for defendant. Therefore, suit proceeded exparte against
defendant.
8. In order to substantiate its claim plaintiff filed chiefinaffidavit of
Vishwanath Shettigar at Exh.3 and filed list of documents at Exh.4.
Plaintiffs' witness proved the following documents :
Ex. Particulars of Documents
5 A true copy of the Board Resolution passed in the Board of
Director’s meeting held on 10th February, 2018.
6 Original ‘Dispatch instruction dated 12.02.2016 and Sale order
ref. No. 3824’.
7 Original Dispatch instruction dated 14.03.2016 and Sale order
ref. No. 4091’.
8 Original Dispatch instruction dated 12.02.2016 and Sale order
ref. No. 4091’.
9 Original Dispatch instruction dated 12.02.2016 and Sale order
ref. No. 4091’.
10 Original Dispatch instruction dated 18.03.2016 and Sale order
ref. No. 4127’.
11 Original Dispatch instruction dated 18.03.2016 and Sale order
ref. No. 4128’.
12 Original Dispatch instruction dated 18.03.2016 and Sale order
ref. No. 4127’.
13 Original Dispatch instruction dated 25.03.2016 and Sale order
ref. No. 4180’.
14 Original Dispatch instruction dated 18.03.2016 and Sale order
ref. No. 4129’.
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15 Original Dispatch instruction dated 06.04.2016 and Sale order
ref. No. 4344’.
16 Original Dispatch instruction dated 21.03.2016 and Sale order
ref. No. 4149’.
17 Original Dispatch instruction dated 12.04.2016 and Sale order
ref. No. 4389’.
18 Original Dispatch instruction dated 21.03.2016 and Sale order
ref. No. 4149’.
19 Original Dispatch instruction dated 18.03.2016 and Sale order
ref. No. 4128’.
20 Original Dispatch instruction dated 26.04.2016 and Sale order
ref. No. 4567’.
21 Original Dispatch instruction dated 19.04.2016 and Sale order
ref. No. 4461’.
22 Original Dispatch instruction dated 26.04.2016 and Sale order
ref. No. 4567’.
23 Original Dispatch instruction dated 07.05.2016 and Sale order
ref. No. 4714’.
24 Original Dispatch instruction dated 31.05.2016 and Sale order
ref. No. 5013’.
25 Office copy of Tax Invoice No. 13907 dated 10.03.2016 for
Rs.6,14,250.00
Consigner copy of LR No.90484 dated 11.03.2016 issued by
Viddhi Transport Co.
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
26 Office copy of Tax Invoice No. 14005 Dated 17.03.2016, for
Rs.29,826.00
Consigner copy of LR No.91259 Dated 17.03.2016 issued by
Viddhi Transport Co.
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
27 Office copy of Tax Invoice No. 14006 Dated 17.03.2016 for Rs.
27,641.00
Consigner copy of LR No.91259 Dated 17.3.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co. is kept along with Document
No. 21 above.
28 Office copy of Tax Invoice No. 14080 Dated 23.03.2016, for Rs.
54,486.00. Consigner copy of LR No.91285 Dated 25.03.2016
issued by Viddhi Transport Co
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Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
29 Office copy of Tax Invoice No. 14081 Dated 23.03.2016, for
Rs.3,88,838.00
Consigner copy of LR No.91285 Dated 25.03.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co. is kept along with Document
No. 24 above.
30 Office copy of Tax Invoice No. 14082 Dated 23.03.2016, for
Rs.1,51,864.00
Consigner copy of LR No.91285 Dated 25.03.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co. is kept along with Document
No. 24 above.
31 Office copy of Tax Invoice No. 14098 Dated 25.03.2016 for Rs.
2,89,406.00
Consigner copy of LR No.91287 Dated 26.03.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
32 Office copy of Tax Invoice No. 14130 Dated 29.03.2016 for an
Amount Rs. 1,15,882.00
Consigner copy of LR No.91296 Dated 30.03.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
33 Office copy of Tax Invoice No. 10060 Dated 06.04.2016 for an
Amount Rs. 2,59,875.00
Consigner copy of LR No.91675 Dated 06.04.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co.
34 Office copy of Tax Invoice No. 10081 Dated 07.04.2016 for Rs.
28,350.00
Consigner copy of LR No.91685 Dated 08.04.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
35 Office copy of Tax Invoice No. 10118 Dated 12.04.2016 for Rs.
6,12,621.00
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Consigner copy of LR No.91697 Dated 12.04.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
36 Office copy of Tax Invoice No. 10142 Dated 13.04.2016 for Rs.
23,625.00
Consigner copy of LR No.93207 Dated 15.04.2016 issued by
Viddhi Transport Co
Confirmation Letter of the Transporter Viddhi Transport Co.
Dated 12.03.2018
37 Office copy of Tax Invoice No. 10237 Dated 21.04.2016 for Rs.
6,49,876.00
Consigner copy of LR No.93247 Dated 23.04.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
38 Office copy of Tax Invoice No. 10238 Dated 21.04.2016 for Rs.
29,236.00
Consigner copy of LR No.93247 Dated 23.04.2016 issued by
Viddhi Transport Co
Confirmation Letter of the Transporter Viddhi Transport Co.
Dated 12.03.2018 is kept along with Document No. 33 above.
39 Office copy of Tax Invoice No. 10440 Dated 02.05.2016 for Rs.
1,98,922.00
Consigner copy of LR No.93571 Dated 03.05.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
40 Office copy of Tax Invoice No. 10828 Dated 24.05.2016 for Rs.
49,790.00
Consigner copy of LR No.94659 Dated 25.05.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
41 Office copy of Tax Invoice No. 10829 Dated 24.05.2016 for Rs.
14,294.00. Consigner copy of LR No.94659 Dated 26.05.2016
issued by Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co is kept along with Document
No. 36 above.
42 Office copy of Tax Invoice No. 10848 Dated 25.05.2016 for Rs.
57,881.00
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Consigner copy of LR No.94653 Dated 26.05.2016 issued by
Viddhi Transport Co. Confirmation letter dated 12.03.2018 in
respect of delivery issued by the Viddhi Transport Co
43 Office copy of Tax Invoice No. 11187 Dated 11.06.2016 for Rs.
63,787.00
Consigner copy of LR No.95729 Dated 13.06.2016 issued by
Viddhi Transport Co
Confirmation letter dated 12.03.2018 in respect of delivery
issued by the Viddhi Transport Co
44 Original Cheque No.’000421” Dated 06.04.2017 Drawn on Kotak
Mahindra Bank for Rs. 2,50,000.00.
Dishonour Memo Dated 10.04.2017 issued by Citi Bank.
45 Original Cheque No.’000422” Dated 11.04.2017 Drawn on Kotak
Mahindra Bank for Rs. 2,50,000.00
Dishonour Memo Dated 18.04.2017 issued by Citi Bank.
46 Original Cheque No.’000423” Dated 17.04.2017 Drawn on Kotak
Mahindra Bank for Rs. 2,50,000.00
Dishonour Memo Dated 21.04.2017 issued by Citi Bank
47 Original of Cheque No.’000424” Dated 21.04.2017 Drawn on
Kotak Mahindra Bank for Rs. 2,50,000.00
Dishonour Memo Dated 24.04.2017 issued by Citi Bank
48 Original Cheque No.’000425” Dated 26.04.2017 Drawn on Kotak
Mahindra Bank for Rs. 2,50,000.00
Dishonour Memo Dated 28.04.2017 issued by Citi Bank
49 Original Cheque No.’000426” Dated 29.04.2017 Drawn on Kotak
Mahindra Bank for Rs. 2,50,000.00
Dishonour Memo Dated 02.05.2017 issued by Citi Bank
50 Original Cheque No.’000427” Dated 05.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 3,00,000.00
Dishonour Memo Dated 06.05.2017 issued by Citi Bank
51 Original Cheque No.’000428” Dated 11.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 3,00,000.00
Dishonour Memo Dated 06.05.2017 issued by Citi Bank
52 Original Cheque No.’000429” Dated 17.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 3,00,000.00
Dishonour Memo Dated 18.05.2017 issued by Citi Bank
53 Original Cheque No.’000430” Dated 22.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 3,00,000.00
Dishonour Memo Dated 23.05.2017 issued by Citi Bank
54 Original Cheque No.’000431” Dated 27.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 3,00,000.00
Dishonour Memo Dated 30.05.2017 issued by Citi Bank
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55 Original Cheque No.’000432” Dated 29.05.2017 Drawn on Kotak
Mahindra Bank for Rs. 1,94,319.00
Dishonour Memo Dated 30.05.2017 issued by Citi Bank
56 A certified true copy of the Ledger account for the period
04.03.2016 to 28.12.2017 of the Defendant.
57 A original Certificate in respect of Ledger Account of the
Defendant
58 Office copy of the Legal Notice dated 20.05.2017 sent on behalf
of Plaintiff.
59 Reply dated 20.06.2017 given on behalf of Defendant.
60 Office copy of Rejoinder dated 10.07.2017 sent on behalf of
Plaintiff
61 Reply to the Rejoinder dated 03.08.2017 sent on behalf of
Defendant.
62 Office copy of the Legal Notice dated 13.02.2018 alongwith
postal receipts and Ad Cards.
Learned counsel for plaintiff filed evidence closure pursis at
Exh.63 and closed their evidence. The evidence of plaintiff is
unrebutted due to none appeaerd on behalf of defendant.
9. Heard learned Advocate for plaintiff. Perused the record and
submissions. Plaintiff filed written submission vide Exh.64. I have
gone through it.
10. On perusal of dispatch instruction and tax invoices it is crystal
clear that, from time to time plaintiff had supplied the goods as per
request of defendant. Defendant received the said goods as well as
invoices without any demur. Therefore, defendant is liable to pay the
amount as per invoices for the goods received by them. Even plaintiff
has adjusted the amount of the goods returned by defendant and credit
the amount received from defendant. Therefore, it is proved that, there
was transaction between plaintiff and defendant. But defendant failed
to make the outstanding payment of goods. Even the cheques issued by
defendant against the payment of outstanding amount were
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dishonoured due to 'fund insufficient'. Which again emphasize that,
defendant was due and payable the outstanding amount for the goods
sold and supplied by plaintiff to them.
11. In spite of service of writ of summons none appeared on behalf of
defendant to rebut the claim of plaintiff. Therefore, evidence of
plaintiff remains unchallenged and unrebutted. Even the documents
remain uncontroverted. Hence, I have to accept the unchallenged claim
of plaintiff. Therefore, suit filed by plaintiff for recovery needs to be
accepted.
12. In spite of repeated requests and demand defendant failed to pay
the amount due and payable, which forced plaintiff to approach this
Court for recovery amount. Therefore, costs of this suit needs to be
saddled on defendant. Being commercial transaction plaintiff is entitled
to recover amount from defendant as per agreed rate of interest on the
outstanding amount. In such circumstances, suit is decreed with costs
and hence, I proceed to pass the following order :
O R D E R
1. Suit is decreed with costs.
2. Defendant do pay Rs.34,88,704/ to plaintiff with
interest @ 18% per annum on Rs.30,44,319/ from the
date of filing of this suit till realization of entire
decreetal amount.
3. Defendant do bear its own costs and costs of plaintiff.
4. Decree be drawn up accordingly.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 14/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 14.02.2019
Transcribed on : 14.02.2019
Signed on : 14.02.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.02.2019 at 12.36 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 14.02.2019
Judgment/order signed by P.O. on 14.02.2019
Judgment/order uploaded on 15.02.2019
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