Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 (J- Comm.Suit 98/19)
MHCC010042002019
Presented on : 09-04-2019
Registered on : 31-08-2019
Decided on : 28-02-2020
Duration : 0 years, 10 months, 19 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO. 98 OF 2019.
HARIRAM SAJANRAMJI BISHNOI
age 47 yrs., carrying on business in the
name and style of M/s. Rajhans Metal
Syndicate as proprietor thereof
at 107/111, 3rd Kumbharwada,
1st floor, Office no.20,
Mumbai 400 004. ..Plaintiff
Versus
DHANANJAY NALAVADE
Prop. Of M/s. Dhansheel Industrial
Corporation carrying on business at
Plot No.169/170, Dr. Patangrao Kadam
Industrial Estate, Palus 416 310,
Dist. Sangli. ...Defendant
Appearance:-
Adv. Mr. Darshan Bafna for plaintiff.
None for defendant. Suit proceeded exparte.
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CORAM : HHJ Shri V.V. Vidwans
(Commercial Court)
C. R. No.03.
DATE : 28.02.2020.
JUDGMENT
1. This is a Suit filed by plaintiff for recovery of Rs.14,04,393/-,
along with pending and future interest.
Brief facts of the case of the plaintiff may be summarized as
under :-
2. Plaintiff is a proprietor of M/s. Rajhans Metal Syndicate and
carries on his business at the given address mentioned in the cause title of
the Suit. Defendant is also a proprietor of M/s. Dhansheel Industrial
Corporation and carries on its business at the given address in the cause
title of the Suit. It is submitted that, the plaintiff had supplied goods to the
defendant as per purchase order placed by him for supply of Ferrous and
Non-Ferrous material during the period from 31.5.2014 to 31.12.2015
under various tax invoices. It is a fact on record that, the defendant had
received the goods along with tax invoices and had never raised any
objection regarding terms and conditions of the bills. It is the case of the
plaintiff that, the defendant had agreed to make payment of bills as per
invoice within 60 days, failing which the defendant was to pay interest over
due amount @24% p.a. The defendant had made several payments in part
starting from 25.7.2014 to the plaintiff and last payment received by the
plaintiff was of Rs.1,00,000/- paid on 14.3.2016. Total payments made by
the defendant are aggregating to Rs.11,13,841/- and regarding this
payment due credit has been given in the ledger account. The balance
amount due to be recovered from the defendant was Rs.8,16,508/-,
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together with interest calculated in the account.
3. It is the case of the plaintiff that, he had made several
demands to the defendant regarding payment of the due amount but he
failed and neglected to pay the balance amount along with interest. The
plaintiff has placed on record statement of account vide Exh.A in the
documents filed with the suit to support his claim. Finally the plaintiff had
issued a notice to the defendant through Advocate on 30.10.2018 by Regd.
Post AD calling upon him to pay principal balance amount due i.e.
Rs.8,16,508/- along with interest within seven days from the receipt of the
notice. The notice was received by the defendant but he failed to comply
with the same. Copy of the notice filed with the suit in the document vide
is at Exh.B. Thus, the plaintiff has claimed in the present suit Rs.8,16,508/-
towards principal balance amount due plus interest calculated @ 24% p.a.
i.e. Rs.5,87,885/-, total due amount Rs.14,04,393/- as on date of filing of
the Suit. The plaintiff has further prayed for awarding of pending and
future interest on the decretal sum. The plaintiff, in paragraphs 8 to 12,
has pleaded about payment of court fees, cause of action and that the suit
claim is not barred by limitation. Hence, the plaintiff has prayed for decree
in the suit.
4. The plaintiff’s claim is supported by documentary evidence as
per list filed with the plaint, which consists of statement of account and
demand notice etc. Before filing of present suit, as claimed, the suit was
covered by the provisions of Commercial Courts Act 2015. The plaintiff had
approached Commercial Dispute Centre of DLSA, Mumbai for the purpose
of pre-institution mediation. Notice was issued to the defendant but inspite
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of the notice, the defendant failed to appear before mediation Centre and
Non Starter Report dated 30.3.2019 is filed on record.
5. On issuance of the writ of summons to the defendant, the
defendant was duly served on 18.9.2019 as per affidavit of service but he
failed to turn up before the court. 30 days period of limitation for filing WS
was over on 23.10.2019. Therefore, I had passed an order in the Suit to be
proceeded exparte against defendant.
6. On 20.11.2019, the plaintiff had filed evidence affidavit at
Exh.2 and list of documents at Exh.3. At the First Case Management stage,
I heard Ld. Counsel for the plaintiff on exhibiting documents at Exh.3 on
12.12.2019 and documents were marked and exhibited at Exhs.4 to 8 on
record which consisted of computerized copy of ledger account of
defendant dated 1.4.2014 to 13.3.2016, Certificate u/s. 65B of the
Evidence Act, computerized copy of income tax return verification form for
the assessment year 2015-16 and 2016-17, computerized copy of demand
notice dated 30.10.2018 and postal receipt along with acknowledgment
etc.
7. On 10.1.2020, Ld. Counsel for the plaintiff submitted that, in
paragraph 8 of the evidence affidavit, there was some typographical
mistake regarding claim amount, therefore he sought permission to file
additional evidence affidavit to rectify the said mistake. Permission was
granted. Accordingly, the plaintiff had filed additional evidence affidavit
vide Exh.2A on 22.1.2020 and closed evidence by filing pursis at Exh.9.
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8. As per provisions of Commercial Courts Act and amended
provisions of CPC vide Order VI Rule 15A r/w. Order 11 Rule 3 of CPC, it is
incumbent upon the plaintiff to file Statement of Truth regarding pleadings
in the plaint as well as documents filed before the court, as per Appendix-
A. The said procedural compliance was not made by the plaintiff in the
present case. Therefore, directions were given and accordingly, on
17.2.2020, the plaintiff had submitted additional affidavit and Statement
of Truth vide Exh.2B. It was read and recorded.
9. I have heard Ld. Counsel for the plaintiff Adv. Mr. Bafna on
behalf of the plaintiff at the final hearing stage. None appeared on behalf
of the defendant as the suit proceeded exparte.
10. Following points arise in the suit for determination and I have
recorded my findings against them with reasons as under :-
POINTS :-
1. Whether the plaintiff has proved that he is entitled to
recover an amount of Rs.14,04,393/- from defendant
towards purchase of goods as per tax invoice?
2. Whether the plaintiff is entitled to claim interest @ 24%
p.a. as claimed in the suit ?
3. Whether the plaintiff is entitled for decree in the Suit?
If yes, what should be pending and future interest to be
awarded to the plaintiff ?
4. What order as to relief and costs?
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FINDINGS:-
1. Yes.
2. No.
3. Yes. Besides, the plaintiff is entitled to pending interest
@ 18% p.a. and future interest @ 6% p.a.
4. Suit decreed with costs.
REASONS
AS TO POINTS NO. 1 TO 3 :-
11. For proving the claim of the plaintiff in the suit, Ld. Counsel
for the plaintiff has relied upon documentary evidence brought on record
by the plaintiff vide Exhs.4 to 8 and oral evidence of PW-1 Hariram Bishnoi
vide Exh.2 and Exh.2A and submitted that, the plaintiff has brought on
record sufficient documentary and oral evidence to prove his claim in the
Suit. PW-1 has supported the plaintiff's claim by deposing on oath in the
evidence affidavit and his evidence has gone unchallenged as the suit has
proceeded exparte. There was typing mistake in the evidence affidavit and
instead of mentioning due amount as Rs.14,04,393/-, it was mentioned as
Rs.11,13,841/-. The said mistake was corrected by the plaintiff by filing
additional evidence affidavit vide Exh.2A and the plaintiff's claim in the
suit is also supported by additional affidavit containing statement of truth
vide Exh.2B. The plaintiff has proved the ledger account at Exh.4,
certificate u/s. 65B of Evidence Act and copy of income tax return
verification form for the assessment years 2015-16 and 2016-17
respectively. The plaintiff has proved the demand notice dated 30.10.2018
and postal receipt filed on record to show that, inspite of demand notice
the defendant has failed to discharge his liability.
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12. Considering the documentary and oral evidence produced on
record by the plaintiff, I find that, the plaintiff has proved his claim in the
suit as per ledger account. Similarly, the transaction in the suit is
commercial transaction, therefore, as per version of the plaintiff, the
defendant had agreed to make payment within 60 days from the date of
tax invoice raised regarding supply of goods @24 % p.a. The said rate of
interest in the commercial transaction appears to be probable and claimed
in normal course. Therefore, I hold that, the plaintiff is entitled to recover
the principal amount along with interest @ 24% p.a. as claimed in the
suit. Points no.1 and 2 are answered accordingly.
13. Similarly, in view of my finding against points no.1 and 2, the
plaintiff is entitled for decree in the suit. Considering the nature of the
transaction involved in the present case that it is commercial transaction, I
am of the opinion that, as per Sec.34 of CPC, the plaintiff is entitled for
pending interest @ 18% p.a. from the date of filing of the suit and till
decision in the suit and future interest @ 6% p.a. from the date of decision
of the decree till actual realization, over the principal sum adjudged. Points
no.3 and 4 are answered accordingly.
14. In view of above discussion and my findings against points
no.1 to 4, I have come to the conclusion that, the Suit is liable to be
decreed. Hence, I proceed to pass following order :-
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ORDER
1. Suit decreed with costs.
2. The defendant is ordered and directed to pay an amount
of Rs.14,04,393/- to the plaintiff, including interest.
3. The plaintiff shall be also entitled to pending interest
over above said decretal amount @ 18% p.a. from the
date of filing of the Suit till decision in the suit AND
future interest @ 6% p.a. from the date of decision till
actual realization.
Decree shall be drawn up accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date : 28.2.2020 Gr. Bombay (CR 03)
Dictated on : 28.2.2020
Transcribed on : 3.3.2020
Draft given to HHJ on 3.3.2020
Signed on : 5.3.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 28.2.2020
Judgment/ order signed by P.O on 5.3.2020
Judgment/ order uploaded on 6.3.2020
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