Final Order 1

Order Details: Ex-parte Judgement
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MHCC010039812018
Presented on : 22032018
Registered on : 17112018
Decided on : 30092021
Duration : Y3, M6, D8
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
COMMERCIAL SUIT NO.466 OF 2021
Nyalchand Bhurabhai Rupani ]
Proprietor, Rushabh Biomed ]
Office No.101/102, 1st floor, Trisandhya ]
Building, C.T.S. No.91, Dadasaheb Phalke ]
Dadar (E), Mumbai400 014 ]....Plaintiff
V/s
Cumballa Hill Hospital and Heart Institute
93/95, August Kranti Marg, Grant Road, ]
Near Kemps Corner, Mumbai400 036 ]...Defendant
APPEARANCE :
Ld. Adv. Parikshit Desai for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED :30th September, 2021
EXPARTE JUDGMENT
(Dictated in Open Court)
This is summary suit under Order XXXVII of the Code
of Civil Procedure, 1908 filed under the Commercial Courts Act,
2015 for recovery of amount of the goods sold to the defendants.
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In brief, the facts of the plaintiff's case are as under :
2. The plaintiff is a proprietor of Rushabh Biomed and
the defendant is a Public Charitable Trust. The plaintiff is a
reputed supplier of medical equipment items, disposable items and
interalia engaged in sale/export of medical items. The defendant is
a Hospital and Heart Research Institute which are in regular need
of sophisticated medical equipment and disposable items. In or
about December, 2015 the defendant through its representative
placed an order for medical disposable items with the plaintiff.
According to said request, the plaintiff initially sent a price list to
the defendant which was confirmed by the defendant. Accordingly,
the plaintiff delivered the medical disposable items to the
defendant alongwith invoices as under:
Sr.
No.
Product Description Invoice No. and Date
Challan No and Date
Amount
(Rs.)
1 Rota Wire 330 cm
GW (5PK) FLOP and
7 ors.
Invoice No.S000182 dated
28.01.2016
Challan Nos.485,627 and
648, all dtd. 27.01.2016
3,88,675.00
2 Promus Element
Stent 2.5 *20 MM
Invoice No.S000371 dated
20.02.2016
Challan Nos.00841 and
00842, both dtd.9.2.2016
1,90,000.00
3 Promus Element
Stent 2.5 *20MM
Invoice No.S000543 dated
07.03.2016
Challan No.01223 dated
20.02.2016
95,000.00
4 Promus Element
Stent 2.5 *20MM
Invoice No.S000548 dated
08.03.2016
Challan No.00840 dated
09.02.2016
95,000.00
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5 Promus Element
Stent 2.5 *20MM
Invoice No.S000646 dated
15.03.2016
Challan No.00853 dated
09.02.2016
95,000.00
6 Promus Element
Stent 2.5 *20MM &
Anr.
Invoice No.S000770 dated
26.03.2016
Challan No.00845 dated
09.02.2016 and Challan
No.01530 dated 07.03.16
1,90,000.00
7 Promus Element
Stent 2.5 *20MM &
Anr.
Invoice No.S001034 dated
18.04.2016
Challan No.01181 dated
19.02.2016 and Challan
No.01224 dated 20.02.16
1,90,904.00
8 Promus Element
Stent 2.5 *20MM
Invoice No.S001090 dated
21.04.2016
Challan No.00847 dated
21.04.2016
95,452.00
Total 13,40,031/
3. The said medical items are delivered to the defendant
and the defendants have accepted its delivery without any demur.
Though the goods were accepted, the defendants have failed to
make any payment thereof. The plaintiff's Advocate vide their
notice dated 04.09.2017 called upon the defendant to pay the
outstanding amount of Rs.16,83,719/, comprising of
Rs.13,40,031/ towards principal and Rs.3,43,688/, towards
interest. The defendants have received this summons, however he
failed to reply and to pay the outstanding amount. The plaintiff is
entitled for the interest at the rate o 24% p.a. if the invoices
remains unpaid for 30 days. Accordingly, the plaintiff has prayed
for decree of sum of Rs.20,59,074/, comprising out of
Rs.13,40,031/ against principal and Rs.7,19,043/ against
interest.
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4. The suit is proceeded exparte against the defendant.
5. Heard the learned Advocate for the plaintiff. No
argument of the defendant. Points for determination along with
my findings thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiff proves that the
defendants have purchased goods from the
plaintiff for amount of Rs.13,40,031/?
Yes
2. Whether the plaintiff proves that the
defendants have failed to pay the amount of
the goods sold and delivered by the plaintiff
to the defendant?
Yes
3. Whether the plaintiff is entitled to recover
the amount of goods sold and delivered to
the defendant?
Yes
4. What shall rate of interest? @ 11% p.a.
5. What order and decree? Suit is partly decreed
REASONS
AS TO POINTS NOS.1 TO 4:
6. All these points are interlinked with each other, hence
they are taken together for consideration. The plaintiff in support
of his claim has examined Nyalchand (PW No.1) at Exh.05. The
plaintiff in support of his claim has also examined Samir (PW
No.2) at Exh.13. The plaintiff has relied on following documentary
evidence:
1 Claim Affidavit at Exh.05
2 Invoice No.S000182 dated 28.01.2016, Challan Nos.
485,627 and 648, all dtd. 27.1.16 at Exh.14
3 Invoice No.S000371 dated 20.02.2016, Challan Nos.00841
and 00842, both dtd.9.2.2016 at Exh.15
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4 Invoice No.S000543 dated 07.03.2016, Challan No.01223
dated 20.02.2016 at Exh.16
5 Invoice No.S000548 dated 08.03.2016, Challan No.00840
dated 09.02.2016 at Exh.17
6 Invoice No.S000646 dated 15.03.2016, Challan No.00853
dated 09.02.2016 at Exh.18
7 Invoice No.S000770 dated 26.03.2016, Challan No.00845
dated 09.02.2016 and Challan No.01530 dated 07.03.16 at
Exh.19
8 Invoice No.S001034 dated 18.04.2016, Challan No.01181
dated 19.02.2016 and Challan No.01224 dated 20.02.16 at
Exh.20
9 Invoice No.S001090 dated 21.04.2016, Challan No.00847
dated 21.04.2016 at Exh.21
10 Copy of Notice dated 04.09.2017 alongwith the original
RPAD Card at Exh.6
11 Copy of the letter dated 22.04.2019 alongwith the original
postal receipts and the original AD Cards at Exh.7 colly
12 Copy of the letter dated 16.05.2019 alongwith the original
postal receipt and the original AD Card at Exh.8 colly
13 Copy of the letter dated 16.05.2019 bearing reference No.
PD/MUM/LIT/41/1920 alongwith the original postal
receipt and the original AD Card at Exh.9 colly
14 Email dated 16.05.2019 at Exh.10
15 Email dated 21.05.2019 at Exh.11 colly
16 Statement of accounts of the defendant/ledger account at
ArtX9 colly
17 Affidavit alongwith certificate U/s 65B(4) of the Indian
Evidence Act,1872 at Exh.12
7. Nyalchand (PW No.1) deposes that on the demand of the
defendant time to time, the plaintiffs have supplied medical items to the
defendant. He further deposes that the defendants have failed to make
the payment of the goods sold and delivered by the plaintiff to them.
The plaintiff has produced the invoices of the goods sold to the
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defendant as follows:
Product
Description
Invoice No. and Date
Challan No and Date
Amount
(Rs.)
Exhs.
1 Rota Wire 330
cm GW (5PK)
FLOP and 7 ors.
Invoice No.S000182
dated 28.01.2016
Challan Nos. 485,627
and 648, all dtd.
27.01.2016
3,88,675.00 14
2 Promus
Element Stent
2.5 *20 MM
Invoice No.S000371
dated 20.02.2016
Challan Nos.00841
and 00842, both
dtd.9.2.2016
1,90,000.00 15
3 Promus
Element Stent
2.5 *20MM
Invoice No.S000543
dated 07.03.2016
Challan No.01223
dated 20.02.2016
95,000.00 16
4 Promus
Element Stent
2.5 *20MM
Invoice No.S000548
dated 08.03.2016
Challan No.00840
dated 09.02.2016
95,000.00 17
5 Promus
Element Stent
2.5 *20MM
Invoice No.S000646
dated 15.03.2016
Challan No.00853
dated 09.02.2016
95,000.00 18
6 Promus
Element Stent
2.5 *20MM &
Anr.
Invoice No.S000770
dated 26.03.2016
Challan No.00845
dated 09.02.2016 and
Challan No.01530
dated 07.03.16
1,90,000.00 19
7 Promus
Element Stent
2.5 *20MM &
Anr.
Invoice No.S001034
dated 18.04.2016
Challan No.01181
dated 19.02.2016 and
Challan No.01224
dated 20.02.16
1,90,904.00 20
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8 Promus
Element Stent
2.5 *20MM
Invoice No.S001090
dated 21.04.2016
Challan No.00847
dated 21.04.2016
95,452.00 21
8. The aforesaid invoices show that the plaintiff has sold
and delivered the goods for an amount of Rs.13,40,031/ to the
defendant. The plaintiff by legal notice (Exh.06) called upon the
defendant to make payment of the amounts of the goods sold
alongwith interest. In spite of receipt of the notice, the defendants
have failed to make the payment thereof.
9. The aforesaid the oral and documentary evidence
proves that the plaintiff has sold and delivered the goods to the
defendant for an amount of Rs.13,40,031/. The defendants have
not denied their liability. Unchallenged evidence of the plaintiff is
required to be accepted. Hence, it proves that, the defendant is
liable to pay the amount of Rs.13,40,031/ to the plaintiff, being
the principal amount of the goods sold and delivered by the
plaintiff to the defendant.
10. It is the case of the plaintiff that against the invoices
mentioned in a case, the payment is not made in time, and the
plaintiff will be entitled for the interest at the rate 24% p.a. The
time for payment is not specifically mentioned in the invoices.
Therefore, from which date the defendant is liable to pay the
interest is not made clear by the plaintiff. Moreover, such terms
mentioned on the invoices cannot be accepted as agreed rate of
interest. Hence, in such cases, the plaintiff will be entitled for the
interest from the date of claim made i.e. from the date of suit.
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Considering the nature of transaction, the plaintiff will be entitled
for the rate of interest @ 11% p.a. from the date of suit.
11. As aforesaid, the plaintiff proves that the defendants
have purchased goods from them for amount of Rs.13,40,031/.
They also proved that the defendants have failed to pay the
amounts of said goods sold and delivered by the plaintiff to the
defendant. The plaintiffs are entitled for rate of interest at the rate
of 11% p.a. from the date of suit. Hence, I answer point Nos. 1 to 4
accordingly.
AS TO POINT NO.5:
12. In view of my findings recorded against point Nos.1 to
4, the suit is required to be partly decreed. In the result, in answer
to point No.5, I pass the following order.
ORDER
1. Suit is partly decreed with costs.
2. The defendant do pay to the plaintiff the sum of
Rs.13,40,031/ (Rupees Thirteen Lakh Forty
Thousand Thirty One Only) alongwith interest at
the rate of 11% per annum from the date of filing
of this suit till its realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :30.09.2021 Mumbai.
Dictated on : 30.09.2021
Transcribed on : 06.10.2021
Signed by HHJ on : 07.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.10.2021 at 3.20 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
30.09.2021
Judgment/order signed by P.O. on 07.10.2021
Judgment/order uploaded on 08.10.2021
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