Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010042082020
Filed on :25.9.2020
Registered On :18.12.2020
Decided on :17.02.2022
Duration : Y-01/M-04/D-23
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 567 OF 2020
IN
Exhibit-08
CNR No. MHCC010042082020
Bhullar Shabdeen Yadav
Age 45 years
of Mumbai an adult Indian Inhabitant,
Carrying on business as a Sole Proprietor
in the form name and stule of “ Mukesh
Enterprise at and from 143-D, Khemka
Bhavan, Sitaram Poddar Marg, Anantwadi,
Behind Siababa Temple, Office no.8,
Mumbai- 400 002. ... Plaintiff
V/s.
1. New Star Packaging
A Sole Proprietorship firm having its
Address at 1/1635 , Habib Shah sheet
Suthar Mohalla, Nanpura , Surat, Gujarat -
395 001.
2. Salehabanu Moh Shafi Shaikh
Age not known an adult Indian Inhabitant
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carrying on business as a Sole Proprietor in
the firm name and style of New Star Packaging
at 1/1635, Habibshah Street, Suthar Mohalla,
Nanpura, Surat, Gujarat- 395 001. ... Defendant
SUIT FOR RECOVERY OF MONEY
Appearance:-
Mr. Ramesh Jain Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 17/02/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is carrying on business as sole proprietor in the
name and style of M/s. Mukesh Enterprise and defendant no.1 is a
proprietary concern to which the defendant no.2 is the sole proprietor.
The plaintiff as per the orders and instructions of the defendants have
sold, supplied and delivered to the defendants goods from time to time
by raising invoices the total goods worth Rs.43,950/- were sold and
delivered to the defendants from time to time and the same were
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received by the defendants without any objection as to quality and
quantity . It was agreed that if the bills remained unpaid, the buyer
becomes liable to pay interest at the rate of 18% p.a. The defendants
have made as per payment of Rs. 8,280/- and amount of Rs.35,670/-
remained outstanding against the defendants. Inspite of plaintiffs
repeated demand the defendants failed and neglected to make any
further payment and accrued interest. Hence, the advocates letter dtd.
16.3.2020 was sent to the defendant. However, even after receipt of
letter they avoided to comply with the requisition thereof. The plaintiff
averred that the defendant is liable to pay the outstanding amount with
interest.
3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendant is liable to pay a
sum of Rs.44,098.83ps/- and further interest thereon at the rate of
18% p.a to the plaintiff from the date of suit till its realization. Hence,
this suit.
5. The suit summons were duly served on the defendants but
they failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
4. The following points arise for my determination and my
findings there on are as under for the reasons stated there under :-
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POINTS FINDINGS
1 Whether plaintiff is entitled to
recover due amount from the
defendants as claimed ?
A] If yes, what would be the rate of
interest?
Amount of
Rs.44,098.83ps/--with
interest
@ 18 % per annum on
principal amount of
Rs.35,670/-
2 What order and decree? Suit is decreed.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of documents:
Sr.
No.
Description of documents Exhibits
1 Invoices/Bills being Exhibit “A” &
“A-4” to the plaint alongwith the
record therewith.
Exh. 7/1
2 Plaintiff’s advocates’ letter dated
16.3.2020 being Exhibit “B” to the
plaint alongwith the postal records
in connection with the
transmission and delivery thereof.
Exh. 7/2
AS TO POINT NO.1:
6. This is a summary suit which is not contested by the
defendant. The plaintiff has produced various documents on record.
Further, he has filed affidavit regarding service of writ of summons to
the defendant. The documents produced on record by the plaintiff
shows that the defendant received the goods covered with the invoices
below Exh.07. It reveals from the record that the said transaction took
place in between 15.9.2018 to 27.1.2020, the notice/letter of demand
was issued to the defendant on dtd.16.3.2020 and the suit is filed on
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22.9.2020. As such, the plaintiff’s claim in the suit is well within
limitation.
7. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has supplied goods to the defendant as
per his instructions and the defendant failed to repay the balance
amount of Rs.44,098.83ps/--, though received the letter of demand
from the plaintiff. Said amount is not repaid by the defendant.
Therefore , defendant is liable to pay the outstanding amount of
Rs.44,098.83ps/-- with interest to the plaintiff. According to the plaintiff
the amount of Rs.44,098.83ps/-- is calculated by them as the
outstanding amount by adding the interest at the rate of 18% p.a. In
this background, I have arrived at the conclusion that the plaintiff is
entitled to recover sum of Rs.44,098.83ps/--from the defendant.
8. According to the plaintiff the outstanding dues against the
defendants is Rs.44,098.83ps/-- and said amount is calculated
alongwith interest at the rate of 18% p.a till the date of filing of the suit.
So the total outstanding amount is Rs.44,098.83ps/--. Apart from said
amount which is due against the defendant on the date of filing of the
suit, the plaintiff has claimed interest at the rate of 18% per annum on
the principal amount. As per section 34 of the Code of Civil Procedure
the rate of interest may exceed 6% per annum, if the transaction is
commercial and there is no contract pertaining to the same between the
parties. In the present case the transaction is a commercial one and
there is no contract existing between the parties as to the rate of
interest which shall be levied. The plaintiff has claimed reasonable rate
of interest on the principal amount which is not disputed by the
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defendant, hence defendant is liable to pay the interest at the rate of
18% p.a. Therefore, I hold, the rate of interest at the rate of 18% per
annum would be just and proper to be awarded on the principal sum
adjudged i.e. amount of Rs.44,098.83ps/--. Hence, point no.1 is answer
in the affirmative.
AS TO POINT NO.2:
9. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.44,098.83ps/-- from the
defendant with interest at the rate of 18% per annum thereon from the
date of filing of the suit till its realization. Plaintiff is also entitled to
recover cost of the suit from the defendants. Hence, in answer to point
no.2, I proceed to pass the following order:
ORDER
1. The defendant shall pay Rs.44,098.83ps/--(Rs. Forty
Four Thousand Ninety Eight and Eighty Three Paise
Only) to the plaintiff, with interest at the rate of 18%
per annum on the principal sum of Rs.35,670/- from
the date of filing of the suit till its realization.
2. The defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
Date :17/02/2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on :17.2.2022
Typed on :17.2.2022
Signed on :17.2.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/02/2022 5.00 p.m, ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
17/02/2022
JUDGMENT/ORDER signed by
P.O.on
17/02/2022
JUDGMENT/ORDER uploaded on 17/02/2022
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