Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 751/21. 1 Ex-parte Judgment (Exh.15).
MHCC010039802018
Presented on : 22-03-2018
Registered on : 17-11-2018
Decided on : 01-10-2021
Duration : 3 years, 6 months, 9 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 751 OF 2021
Exh.15.
Shantinath Healthcare LLP, )
201, Neelkanth IT Park, Sterlite Compound, )
Mumbai – 400 086 )
Through its Authorised 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.
(C.R.NO.31).
DATE : 1st OCTOBER, 2021.
Mr. Parikshit Desai, Advocate for the plaintiff.
The defendant – Exparte.
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
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Comm.Suit No. 751/21. 2 Ex-parte Judgment (Exh.15).
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a limited liability partnership
incorporated and registered under the provisions of the Limited Liability
Partnership Act, 2008. The plaintiff Jaydeep Doshi filed the suit in the
capacity of authorized signatory of the firm. He has also placed on
record board resolution. 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.16,35,939/. The plaintiff had also issued credit
notes to the defendant in respect of certain invoices as per letter dated
20/02/2016 and 21/04/2016.
3. The said medical items were delivered to the defendant in a
timely manner without any demur by affixing its stamps and the
signatures of the authorized representative on each delivery challan and
invoices. 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.
Accordingly, the plaintiff has sought recovery of Rs.25,35,823/
(principal amount of Rs.16,35,939/ plus interest of Rs.8,99,884/ for
the period from 16/07/2017 till the date of the suit).
4. The defendant was duly served with writ of summons as
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Comm.Suit No. 751/21. 3 Ex-parte Judgment (Exh.15).
per affidavit of service and Sheriff report on writ of summons dated
19/12/2018 (Exh.2), but he failed to appear and oppose the claim of
the plaintiff. Therefore, my learned Predecessor passed the exparte
order against him on 03/05/2019.
5. PW 1 Jeydeep Doshi deposed on evidence affidavit (Exh.3)
and proved documents filed with list of documents (Exh.4). Proved
documents are at Exh.6 to 11. The plaintiff closed evidence vide pursis
(Exh.14). Heard learned counsel Mr. Parikshit Desai for the plaintiff.
6. 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.25,35,823/ (principal amount
of Rs.16,35,939/ plus interest of
Rs.8,99,884/ for the period from
16/07/2017 till the date of the
suit) ? Affirmative as to principal
amount with interest
thereon @ 18% p.a. on
expiry of 15 days from
the dates of invoices
(Exh.6 colly.) till the date
of filing of the suit.
2. What order as to costs ? In the Negative.
3. What order and decree ? Suit is partly decreed.
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Comm.Suit No. 751/21. 4 Ex-parte Judgment (Exh.15).
REASONS
AS TO POINT NOS.1 AND 2 :
7. Evidence affidavit of PW 1 Jaydeep Doshi reveals that the
plaintiff had supplied medical disposable items to the defendant as per
53 original invoices (Exh.6 colly.). 55 Original credit notes in respect of
these invoices are placed on record at Exh.7 colly. Similarly, letters
issued on 21/03/2016, 19/04/2016, 04/09/2017, 13/03/2019,
22/04/2019 and 16/05/2019 are placed on record at Exh.8 colly. All
invoices as well as credit notes have received signatures of the concern
employee of the defendant. Similarly, letter dated 04/09/2017 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 in
which liability is not disputed. Similarly, letter dated 17/05/2019
(Exh.9) issued by the defendant states that the plaintiff was invited to
send his dues with other details.
8. In short, the defendant has nowhere disputed his liability in
correspondence with the plaintiff. Received signatures on invoices and
credit notes 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. It is pertinent to note that the plaintiff has not
claimed interest for the future period, from the date of the suit. Even
then, interest claimed by the plaintiff appears to be exorbitant and
reasonable reduction in it is required to be made. Considering the fact
that the plaintiff surrendered his claim for future interest, interest at the
rate of 18% p.a. can be granted to the plaintiff on the expiry of 15 days
period from the date of tax invoices.
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Comm.Suit No. 751/21. 5 Ex-parte Judgment (Exh.15).
9. 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 to the extent of his claim regarding principal amount with
reduction in rate of interest as above. As the plaintiff did not claim the
cost in the prayer clause of the plaint, it cannot be awarded. In the
light of above discussion, I record my findings as to point no.1 in the
affirmative with reduction of interest rate as discussed above and as to
point no.2 in the negative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 751/2021 is partly decreed.
2. The defendant is directed to pay principal amount of
Rs.16,35,939/ (Rupees Sixteen Lakhs Thirtyfive Thousand
Nine Hundred Thirtynine Only) to the plaintiff within
three months from the date of decree.
3. The defendant is further directed to pay interest @ 18%
p.a. on the amount of Rs.16,35,939/ to the plaintiff on
expiry of 15 days from the dates of invoices (Exh.6 colly.)
till the date of filing of the suit.
4. The plaintiff shall bear his own costs.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 01/10/2021. Mumbai.
1. Dictated online on : 30/09/2021.
2. Signed on : 01/10/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 751/21. 6 Ex-parte Judgment (Exh.15).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/10/2021. 5.22 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 01/10/2021.
Judgment/Order signed by P.O. on 01/10/2021.
Judgment/Order uploaded on 01/10/2021.
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