Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010042122020 Presented on 22-09-2020
Registered on 18-12-2020
Decided on 02-09-2023
Duration 02Y: 11M: 11D
Exhibit 10
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 564 OF 2020
Bhullar Shabdeen Yadav ]
of Mumbai an adult Indian Inhabitant ]
carrying on business as a Sole Proprietor ]
in the firm name and style of “Mukesh” ]
Enterprise at and from 143-D, Khemka ]
Bhavan, Sitaram Poddar Marg, Anantwadi ]
Behind Saibaba Temple, Office No.8, ]
Mumbai-400 002. ]...Plaintiff
VERSUS
1. G. R. Arts ]
A sole proprietorship firm having its ]
Address at Near Juni Masjid, Islampura, ]
Malegaon, Maharashtra. ]
2. Fauzan Gulam Rasool Ansari ]
Age not known an adult Indian inhabitant ]
carrying on business as a Sole Proprietor ]
in the firm name and style of G.R.Arts ]
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2 Sum Suit No.564/2020
at Near Juni Masjid, Islampura, ]
Maleaoh, Maharashtra. ]...Defendants
Appearance :
Ld. Advocate Mr. Ramesh Jain for the plaintiff.
None for the defendants (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 02/09/2023.
J U D G M E N T
(Delivered on 2nd September, 2023)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of
Rs.1,08,178.02ps. Brief facts of the plaintiff’s case may be
summarized as under:
2. The plaintiff is carrying business as a sole proprietor in
the name and style of ‘M/s. Mukesh Enterprise’. Defendant No.1 is a
proprietary concern and defendant No.2 is a proprietor of defendant
No.1.
3. According to the plaintiff, pursuant to the orders placed
by the defendants for supply of goods, they sold, supplied and
delivered it to the defendants and has raised invoice bearing No.60
dated 23-05-2018 for Rs.76,652/-. The defendants have not raised
any dispute and/or controversy in respect of the quality, quantity
and/or rate of the same. The defendants have duly utilized the said
goods supplied by the plaintiff, for the business purposes.
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4. According to the plaintiff, thereafter from time to time the
plaintiff demanded the amount due under the said Invoice from the
defendants. But the defendants have failed and neglected to pay the
due amount and have kept the plaintiff on false and baseless promises.
Therefore, plaintiff issued notice dated 16-03-2020 through its
advocate and called upon the defendants to pay the due amount. The
defendants have duly received the said notice, but the defendants have
failed and avoided to comply the same. According to the plaintiff, it is
entitled to receive the amount of Rs.1,08,178.02 ps. along with the
interest @ Rs.18% on the principal amount Rs.76,652/- from
23rd May 2018 till filing of the suit. Hence, the present suit.
5. The defendants were served with the writ of suit
summons. The plaintiff has filed affidavit of service at Exh.5. Despite
service, the defendants have not caused their appearance, Hence, the
suit proceeded ex-parte against them by the order dated 06-08-2022.
6. In support of claim, the plaintiff filed his affidavit of claim
at Exh.6 and reiterated his contention made in the plaint and prayed
for the decree for Rs.1,08,178.02 ps. along with further interest at the
rate of 18% p.a. on Rs.76,652/-. The plaintiff has filed and relied
upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.8 Invoice/Bill
2 Exh.9 Plaintiff’s Advocates’ letter dated 16-03-2020
7. To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
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Sr. No. Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.1,08,178.02 ps.
from the defendants?
If yes, at what rate interest?
Partly yes
Entitled to amount
Rs.76,652/- and interest
thereon @ Rs.9% p.a.
from the date of filing the
suit till the date of decree
and then @ Rs.6% p.a. till
full realization.
2. What order and decree? As per final order.
R E A S O N S
As to Points No.1 & 2:
8. The plaintiff has filed his claim affidavit in support of
the case set out in the plaint at Exh.6 and also placed on record
some documents as referred to above. Evidence on affidavit placed
on record by the plaintiff supports to his case that the defendants
had placed an order with the plaintiff for purchasing the goods, and
in accordance with that order, the plaintiff supplied the goods to the
defendants and the plaintiff had raised the invoice. It appears also
from the evidence of the plaintiff and the invoices placed on record
that there was the transaction, and accordingly the plaintiff had
raised the invoice for the total amount of Rs.76,652/-. It is also
found that the plaintiff had issued the legal notice dated
16-03-2020 through the advocate and it is duly served on the
defendants. Despite the service of the said notice and calling upon
the defendants to clear off the dues, the defendants not paid
amount. Evidence of the plaintiff remained unrebutted and
unchallenged. Therefore, there is no reason to disbelieve the
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evidence of the plaintiff particularly when it is supported by the
documents. Furthermore, in view of provision of Rule 2 (3), order
XXXVII of CPC, owing to failure of the defendants to appear, it
needs to be presumed that the defendants admit the contents and
the allegations contained in the plaint. Therefore, I hold that the
plaintiff has proved that he is entitled to recover the amount of
Rs.76,652/-.
9. It may be seen that the plaintiff has claimed the interest
at the rate of Rs.18% p.a. on the principal amount i.e. on the
amount of Rs.76,652/-. However, it is important to note that there
appears no agreement to pay the interest on the outstanding
amount. Therefore, I hold that the plaintiff is not entitled to any
interest till filing the suit. But the transaction between the plaintiff
and the defendants was of the commercial in nature and therefore,
because of making default by the defendants despite calling upon
them to pay the outstanding amount, I am of the view that the
plaintiff can be made entitled and is made entitled to the interest.
However, the interest claimed by the plaintiff appears to be
excessive, and therefore, I hold that the plaintiff is entitled to the
interest at the rate of Rs.9% p.a. from 22-09-2020, the date of filing
of the suit till passing the decree, and then @ Rs.6% p.a. from the
date of decree till its full realization, and accordingly I answer point
No.1. In the result, in an answer to point No.2, I proceed to pass
the following order.
O R D E R
1] The Summary suit No.564 of 2020 is partly decreed with costs.
2] Both the defendants are held jointly and severally liable to pay
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to the plaintiff the decretal amount.
3] The defendants shall pay the amount of Rs.76,652/-
(Rupees Seventy Six Thousand and Six Hundred Fifty Two only)
to the plaintiff along with interest at the rate of Rs.9% p.a. from
22-09-2020, the date of filing the suit till the date of passing the
decree, and then @ Rs.6% from the date of the decree till its full
realization.
4] The plaintiff is entitled to get refund 2/3rd of the court fees
amount be paid by it.
5] The decree shall be drawn accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 02-09-2023 Court Room No.61
Mumbai.
Dictated on : 02-09-2023
Corrected and signed on: 02-09-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-09-2023 at 3.22 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
02-09-2023
JUDGMENT/ORDER signed by P. O. on 02-09-2023
JUDGMENT/ORDER uploaded on 04-09-2023
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