Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 750/21. 1 Ex-parte Judgement (Exh.32).
MHCC010039792018
Presented on : 22-03-2018
Registered on : 17-11-2018
Decided on : 02-05-2022
Duration : 4 years, 1 months, 11 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 750 OF 2021
(OLD SUMMARY SUIT NO. 1340 OF 2018)
Exh.32.
A.K. Surgicals, )
211, Hind Rajasthan Building, )
Dadasaheb Phalke Road, )
Near Dadar (Central Rly.) Station, )
Mumbai – 400 014 )
Through its Authorized Signatory )
Mr. Jaydeep Doshi )...Plaintiff
Versus
Cumballa Hill Hospital and Heart )
Institute, )
93/95, August Kranti Marg, Grant Road, )
Near Kemps Corner, Mumbai – 400 036 )...Defendant
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 2nd MAY, 2022.
Shri Parikshit Desai, Advocate for the plaintiff.
Defendant – (Exparte).
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Comm.Suit No. 750/21. 2 Ex-parte Judgement (Exh.32).
JUDGMENT (EXPARTE)
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a partnership firm. Hiren Bhalani, the
partner has filed the suit on behalf of the firm. The defendant is a
public charitable trust running the hospital and heart research institute
based in Mumbai. The defendant was in need of sophisticated medical
equipments / disposable items and placed an order for certain medical
disposable items at the plaintiff. The plaintiff sent a price list to the
defendant who confirmed the same. Then, the plaintiff delivered
medical disposal items to the defendant as agreed from time to time as
per quotations listed in para 5 of the plaint worth Rs.18,03,778/. The
plaintiff forwarded the ledger statement maintained by it with letter
dated 09/01/2017 and the defendant has received the same and affixed
its stamp and the signature of the authorized representative on the
office copy. The defendant did not make any payment after receipt of
goods. The defendant is liable to pay interest at the rate of 24% p.a. on
the outstanding dues from due date of the invoices till the date of
payment. Advocate for the plaintiff issued notice dated 04/09/2017 to
the defendant demanding outstanding amount with interest, but in
vain. Accordingly, the plaintiff has sought recovery of Rs.34,23,846/
(principal amount of Rs.21,41,251/ plus interest of Rs.12,82,595/)
with further interest at the rate of 24% p.a. from the date of filing of the
suit till realization with costs of the suit.
3. Advocate Ravina Yadav and Advocate Sheetal Chavan for
the defendant appeared before the Court on 04/10/2021 and
07/10/2021 respectively, but they did not file vakalatnama.
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Comm.Suit No. 750/21. 3 Ex-parte Judgement (Exh.32).
Considering service of writ of summons as per service affidavit (Exh.2),
no written statement order came to be passed against the defendant.
Subsequently, the plaintiff examined PW 1 Jeydeep Doshi on evidence
affidavit (Exh.3) and proved documents filed with list of documents
(Exh.4). Proved documents are at Exh.5 to 29. The plaintiff closed
evidence vide pursis (Exh.30). Heard learned counsel Mr. Parikshit
Desai for the plaintiff.
4. Matter was fixed for judgment on 24/11/2021, but
advocate Akshay Mehta appeared for the defendant and filed
vakalatnama (Exh.31). Subsequently, the defendant filed Notice of
Motion No. 3182/2021 for setting aside 'Without Written Statement'
order dated 07/10/2021. As the defendant did not turn up to argue the
said notice of motion even after extending reasonable opportunities, it
came to be dismissed in default as per order dated 18/04/2022.
Learned counsel Mr. Parikshit Desai for the plaintiff again advanced
arguments.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.34,23,846/ (principal amount
of Rs.21,41,251/ plus interest of
Rs.12,82,595/) ? If yes, at what
rate of interest ? In the Affirmative with
interest @ 12% p.a. on
principal amount of
Rs.21,41,251/.
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Comm.Suit No. 750/21. 4 Ex-parte Judgement (Exh.32).
2. What order as to costs ? As per final order.
3. What order and decree ? Suit is partly decreed.
REASONS
AS TO POINTS NO.1 AND 2 :
6. Evidence affidavit of PW 1 Jaydeep Doshi reveals that the
plaintiff had supplied medical disposable items to the defendant as per
15 original invoices (Exh.6 to 19). Delivery challan are also placed on
record with invoices and the same bear stamp of the defendant with
received signatures of authorized representative. Similarly, letter dated
04/09/2017 (Exh.21) issued by the plaintiff show that he had
persuaded the aspect of recovery of outstanding amount with the
defendant. The said letter is received by the defendant. The defendant
has issued letter dated 13/03/2019 (Exh.22) in which liability is not
disputed. Similarly, letter dated 22/04/2019 (Exh.23), letter dated
16/05/2019 (Exh.24) and letter dated 16/05/2019 (Exh.25) are also
sent to the defendant by the plaintiff. The defendants have not
disputed the liability in email dated 17/05/2019 (Exh.26).
7. In short, the defendant has nowhere disputed his liability in
correspondence with the plaintiff. Received signatures on invoices and
delivery challans fortifies to the fact of sale and delivery of medical
equipments as pleaded in para 5 of the plaint. Invoices have the clause
stating that payment within 15 days shall be made otherwise 24%
interest will be charged. This interest can be awarded till the date of
the suit as claimed by the plaintiff. While granting further interest, the
Court has to exercise discretion considering exorbitant rate of interest.
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Comm.Suit No. 750/21. 5 Ex-parte Judgement (Exh.32).
It would be appropriate to award further interest at the rate of 12%
p.a..
8. It is established from oral and documentary evidence on
record that the plaintiff had sold and delivered goods to the defendant.
In the light of all above discussion, the plaintiff has succeeded in
proving his case with the help of sufficient oral and documentary
evidence. Cost of the suit is liable to be saddled upon the defendant. In
the light of above discussion, I record my finding as to point no.1 in the
affirmative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 750/2021 is partly decreed.
2. The defendant is directed to pay amount of Rs.34,23,846/
(Rupees Thirtyfour Lakhs Twentythree Thousand Eight
Hundred Fortysix Only) to the plaintiff with further
interest @ 12% p.a. on principal amount of Rs.21,41,251/
from the date of the suit till the date of realization within
three months from the date of decree.
3. The defendant shall bear the costs of the suit.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 02/05/2022. Mumbai.
1. Dictated online on : 02/05/2022.
2. Signed on : 02/05/2022.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 750/21. 6 Ex-parte Judgement (Exh.32).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/05/2022. 4.10 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 02/05/2022.
Judgment/Order signed by P.O. on 02/05/2022.
Judgment/Order uploaded on 04/05/2022.
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