Final Order 1

Order Details: Other
Pdf Text: MHCC010039422018 Presented on 21/03/2018
Registered on 21/03/2018
Decided on 21/01/2025
Duration 06Y: 10M: 02D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 102 OF 2018
IN
SUMMARY SUIT NO. 242 of 2017
Hasmukh K. Vora ]
Adult, Indian Inhabitant of Mumbai, carrying ]
on business in the firm name and style of ]
M/s. VIKAS MEDICAL HOUSE as its sole ]
proprietor from Shop Nos.3 & 3A, Dhanashree ]
Building, P. G. Solanki Path, Ghass Gali, ]
Near Minerva Cinema, Grant Road (East), ]
Mumbai - 400007 ]... Plaintiff
V/s
Vinay K. Jain ]
Adult, Indian Inhabitant, carrying on business ]
in the firm name and style of M/s. S. R. ]
International, as its sole proprietor having its ]
office at F-53, Green Park (Main), ]
New Delhi - 110016. ]... Defendant
Appearance:-
Ld. advocate Aieshwaryalaxmi Uday Virkar instructed by Pradeep J.
Ramchandani for plaintiff.
Defendant absent.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 21/01/2025.
ORDER
( Dictated and pronounced in open Court)
01] Plaintiff has filed summons for judgment against
defendant. Defendant failed to file reply to the summons for judgment.
Therefore, order is passed on 14/12/2018 to proceed matter without
reply of defendant to summons for judgment.
02] As per plaintiff, he is carrying business of dealing in
medical books under the name and style of M/s. Vikas Medical House
and is sole proprietor of it. Defendant is a sole proprietor of M/s. S. R.
International and carrying on his business. As per orders placed by
defendant, plaintiff has supplied medical books to defendant and
accordingly raised invoice No.SL00001950 dated 22/01/2014 for total
sum of Rs.14,74,532/-. The plaintiff sent said goods through ABC
Transport Co. Pvt. Ltd. on 21/01/2014. Defendant has received said
goods. The defendant failed to make the payment as per the invoice.
However, after repeated requests, defendant in discharge of his liability
issued two cheques towards part payment bearing No.519563 dated
03/06/2014 for Rs.5,00,000/- and cheque bearing No.519564 dated
04/06/2014 for Rs.5,00,000/- drawn on Syndicate Bank, Green Park
Extension, New Delhi. Plaintiff deposited said cheques in Canara Bank,
Mumbai Central Branch, Mumbai. However, said cheques were
dishonoured on 06/06/2014 for reasons "FUNDS INSUFFICIENT".
Therefore, plaintiff issued demand notice dated 21/06/2014 to the
defendant under Section 138 of Negotiable Instrument Act and called
upon to pay an amount of Rs.10,00,000/-. The defendant received the
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said notice on 27/06/2014, however, defendant neglected and failed to
pay the cheque amount. The plaintiff is entitled for a total amount of
Rs.14,74,532/- as per invoice. However, defendant has made part
payment of Rs.5,00,000/- on 14/07/2014 by RTGS. Therefore, plaintiff
issued demand notice dated 26/08/2014 by RPAD and called upon him
to pay the balance payment of Rs.10,23,494/- alongwith interest at the
rate of 12% p.a. on the principal amount of Rs.9,74,532/-. The
defendant failed and neglected to pay the outstanding amount.
Therefore, plaintiff is entitled for principal amount of Rs.6,69,532/- and
interest amounting to Rs.3,13,030/- total amounting to Rs.9,82,562/-.
Hence, this suit.
03] Though defendant appeared in the matter, as discussed
above, he failed to file reply to the summons for judgment. Therefore,
summons for judgment is proceed without reply of the defendant.
04] To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is
entitled to recover amount
of Rs.9,82,562/- from
defendant ? If yes, at what
rate interest?
Yes,
Entitled to interest @ 7% p.a. on
Rs.6,69,532/- from 16/01/2017, the
date of filing of the suit till its full
realization.
2. What order and decree? As per final order.
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R E A S O N S
As to points No. 1 and 2 :-
05] Perused, plaint, summons for judgment and documents
filed on record. Heard learned advocate for plaintiff. Defendant failed to
argue on the summons for judgment, inspite of giving opportunity. As
per the contention of plaintiff, he had supplied medical books to the
defendant as per the purchase order placed by the defendant. It is
pertinent to note that plaintiff has not filed any purchase order on
record placed by defendant. However, plaintiff has filed invoice dated
22/01/2014 on record vide list Exhibit-04/1. On perusing said invoice,
it appears that plaintiff has supplied and delivered medical books to the
defendant amounting to Rs.14,74,532/-. Further, it is the contention of
plaintiff that he had supplied and delivered said goods to defendant
through ABC Transport Co. Pvt. Ltd. on 21/01/2014. It is pertinent to
note that plaintiff has not filed any lorry receipt on record to show that
said medical books were delivered to the defendant.
06] However, it is the contention of the plaintiff, defendant in
order to discharge his liability had issued to cheques of Rs.5,00,000/-
each. The plaintiff has filed said original cheques vide List
Exhibit-04/02 and 04/04. On perusing said cheques, it appears said
cheques are issued by defendant on behalf of S.R. International. The
plaintiff in order to prove that said cheques were dishonoured for
reasons "FUNDS INSUFFICIENT" has produced on record written
memos of bank vide list Exhibit-04/03 and 04/05. The defendant has
not appeared in the matter and filed his reply or contested the matter.
Therefore, the contention of plaintiff in respect of issuance of cheques
in favour of plaintiff has remained unchallenged. Thus, it appears that
defendant had issued said cheques to discharge his liability.
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07] As per the contention of plaintiff, as said cheques were
dishonoured he issued legal notice dated 21/06/2014 by RPAD to
defendant and called upon to make the payment of Rs.10,00,000/-.
Further, plaintiff has filed office copy of said notice on record vide list
Exhibit-04/06. In order to prove that said notice is received by
defendant, plaintiff has filed office copy of letter issued to Post Master,
Mumbai Central Post Office, Mumbai on 30/07/2014 alongwith report
given by the concerned department. The plaintiff has filed said office
copy of letter alongwith report on record vide Exhibit-04/07. Further,
on perusing report given by the Post Master it appears that said notice is
served upon the defendant on 27/06/2014. Further, it is the contention
of plaintiff that defendant made part payment of Rs.8,05,000/- out of
Rs.14,74,532/-, therefore, total amount of Rs.6,69,532/- is due against
defendant. It is pertinent to note that plaintiff has claimed interest at
the rate of 12% p.a. on the said amount which comes to Rs.3,13,030/-.
The plaintiff has not filed any bank extract or any other document to
show that the defendant has paid said amount. However, plaintiff has
himself admitted that defendant has made part payment.
08] It is the further contention of plaintiff that defendant
neglected and failed to make the part payment of Rs.6,69,532/-.
Therefore, plaintiff again issued notice dated 26/08/2014 by RPAD to
the defendant. The office copy of said notice is filed on record vide List
Exhibit-04/09. It is pertinent to note that plaintiff has not filed any
postal receipt or AD card to show that said notice is served upon the
defendant. Even though, on perusing said notice it appears that plaintiff
has called upon defendant to make the payment of balance amount of
Rs.10,23,494/- with further interest at the rate of 12% p.a. on principal
amount of Rs.9,74,532/-. It is pertinent to note that plaintiff has not
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filed either bank statement or ledger account to show that how much
amount is due and payable against defendant. The plaintiff has called
upon defendant to make the payment of Rs.10,23,494/- as per notice
dated 26/08/2014 and further interest at the rate of 12% p.a. on
principal amount of Rs.9,74,532/-. However, in para 12 of the plaint,
plaintiff has given particulars of amount paid by defendant and
principal amount as well as interest amount due against defendant. As
per para 12 of the plaint, plaintiff has contended out of Rs.14,74,532/-,
defendant has paid amount of Rs.8,05,000/- and balance amount
towards principal is Rs.6,69,532/- and interest amount of
Rs.3,13,030/-. However, contrary to the said pleading, the plaintiff has
claimed an amount of Rs.10,23,494/- with further interest at the rate
12% p.a. on principal amount of Rs.9,74,532/-. As discussed above, the
plaintiff has not filed any bank statement or ledger account to support
his contention with respect to the amount claimed in then notice dated
26/08/2014. Thus, from the oral as well as documentary evidence on
record, I am of the view that plaintiff has proved that he has supplied
medical books to the plaintiff as contended and defendant has made
part payment and failed to make the balance part payment. As
discussed above, defendant has not challenged the contention of
plaintiff. Therefore, his documentary evidence has remained
unchallenged. Therefore, plaintiff is entitled for judgment as per the
Order XXXVII Rule 6(a) of Code of Civil Procedure. Therefore, I am of
the view that plaintiff is entitled for an amount of Rs.6,69,532/-
towards principal and an amount of Rs.3,13,030/- towards interest,
total amounting to Rs.9,82,562/-.
09] The plaintiff has claimed further interest at the rate of 12%
p.a.. Admittedly, there is no agreement between plaintiff and defendant
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with respect to the rate of interest. Further, the rate of interest claimed
by plaintiff is excessive in nature as compared with the rate of interest
of Nationalized Bank. Therefore, I am of the view that it would be
proper to grant interest at the rate of 7% p.a. in view of Section 34 of
Code of Civil Procedure on the principal amount of Rs.6,69,532/- from
the date of filing of the suit till its realization. Hence, I answer point
No.1 in Affirmative and in answer to point No.2, I proceed to pass
following order :-
ORDER
1) Summons for judgment No.102/2018 in Summary Suit
No.242/2017 is allowed.
2) Summary Suit No.242/2017 is decreed with costs.
3) Defendant is directed to pay an amount of Rs.9,82,562/-(Rupees
Nine Lakhs Eighty Two Thousand Five Hundred Sixty Two only)
to plaintiff.
4) Defendant shall pay to plaintiff simple interest at the rate of 7%
p.a. on principal amount of Rs.6,69,532/- (Rupees Six Lakhs
Sixty Nine Thousand Five Hundred Thirty Two only) from
16/01/2017 i.e. date of filing of the suit till its realization.
5) Decree be drawn up accordingly.
6) Plaintiff is entitled for refund of Court fees as provided in rules, if
any.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 21/01/2025 Court Room No.81
Dictated on : 21/01/2025
Corrected & signed on :21/01/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
23/01/2025 Ms. Sonali S. Sawant
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 21/01/2025
JUDGMENT/ORDER signed by P. O. on 21/01/2025
JUDGMENT/ORDER uploaded on 23/01/2025
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