Final Order 1

Order Details: Ex-parte Judgement
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MHCC010042662020
Presented on 29-09-2020
Registered on 06-01-2021
Decided on 13-04-2023
Duration Yrs. M. Days
02 06 14
EXHIBIT- 15
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
IN
SUMMARY SUIT NO. 18 OF 2021
Savita Hasmukh Surana, Age: 54 years, Indian
Inhabitant, Proprietress of Manoj Enterprises,
having her address at Shop No. 11, Building No.
18, Harharwala Building, N.M. Joshi Marg,
Mumbai-11.
...Plaintiff
VERSUS
1. Chetan Motilal Jain, An adult, Indian
Inhabitant, Carrying on Business under the name
And style as M/s. Rustico, Having its addresss at
C/o Friends & Co. 1 Khatuau Building, Ground
Floor, 48 Bank Street, Opp. Shahis Bhagatsingh
Road, Kala Ghoda, Fort, Mumbai-400 001. And
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2 Exp.Judg in Sum Suit No.18/2021
also at- B/107, Kamal Kunj, Chiwda Galli,
Lalbaug, Mumbai-400012.
2. Friends & Co.,Having its address at- Khatau
Building,Ground Floor 148 Bank, Opp. Shahis
Bhagatsingh Road, Kala Ghoda, Fort, Mumbai-
400001.
...Defendants
Appearance :
Ld. Adv. Mr. Manoj Agre for plaintiff.
Defendants absent (
Exparte).
Coram : D.R. S. D. TAWSHIKAR
(Court Room No.61)
Heard on : 13-04-2023
Decided on : 13-04-2023
ORAL ORDER
(Dictated and pronounced in Open Court)
This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil Procedure, 1908 (for short 'CPC') for recovery of sum of
Rs. 1,37,689/- along with further interest at the rate of 18% p.a. on the
principal amount i.e. Rs. 1,05,915/-.
2. Plaintiff claims to have sold various kind of dairy products
to the defendant No.1 between the period from 06-04-2018 to
18-12-2018 aggregating to a sum of Rs. 7,95,056/-. The goods were
supplied to the defendant and without raising any dispute in respect of
the price, quality and quantity thereof received by it. Defendant No.2 is
a partnership firm who stood guarantor for the defendant No.1.
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3. After receipt of the goods, from time to time, defendant
No.1 made part payment leaving balance of Rs.1,05,915/-. Defendant
No. 2 issued two cheques to discharge the liability of defendant No.1.
Cheque of Rs. 1,43,879/- was issued on 27-01-2019 and another
cheque of Rs. 2,05,000/- was issued on 31-05-2019. It is submitted that
both the cheques were dishonoured. Thereafter, plaintiff issued notices
to the defendants seeking balance payment.
4. It is further contended that further an amount of Rs.1 lakh
was paid by the defendant No.2 and thus a balance of Rs.1,05,915/-
was due and outstanding. As defendants failed to pay the said amount,
plaintiff has filed the present suit.
5. Defendants were duly served on 18-01-2021, however they
failed to cause appearance. Therefore, this Court by order dated 13-06-
2022 proceeded
exparte against both the defendants.
6. Plaintiff has placed on record compilation of documents at
Exh.04, which mainly includes 11 Invoices (Exh.6 colly), the ledger
account (Exh.7), dishonoured cheques (Exh.8) and their return memos
as well as the notices (Exh.10 to 14) issued by the plaintiff from time to
time. Plaintiff has also filed affidavit of examination-in-chief of Smt.
Savita Hasmukh Surana at Exh.03. She has reiterated the allegations
contained in the plaint.
7. Sub Rule (3) of Rule 2 of Order XXXII of CPC, provides that
if defendant fails to enter his appearance, the allegations in the plaint
shall be deemed to be admitted by the defendant and plaintiff shall be
entitled to a decree. In matter in hand admittedly defendants, despite
due service, failed to cause appearance. This eventually provides an
assumption that defendants did not dispute the allegations contain in
the plaint.
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8. Apart from this statutory presumption, plaintiff has placed
on record ample material to show the supply of goods. The issuance of
two cheques by defendant No.2 further shows that defendant had
issued cheques for discharge of liability on behalf of defendant No.1. In
view of the above, I find no reason to discard the evidence adduced on
record. Hence, I hold that plaintiff is entitled for recovery of sum of
Rs. 1,05,915/- from both the defendants jointly and severally.
9. Ld advocate for the plaintiff submits that interest at the
rate of 18% p.a. may be awarded. He submits that as cheques got
dishonoured in view of section 80 of Negotiable Instruments Act, 1881,
interest at the rate of 18% may be awarded.
10. Admittedly, the amount of cheque is different than the
amount sought to be recovered. The case of the plaintiff is not based on
negotiable instruments, however on the unpaid invoices. Therefore, the
interest at the rate of 18% p.a. cannot be awarded. Same is on higher
side. However, considering the nature of transaction i.e. Trade and
Commerce, plaintiff deserves a reasonable interest on the amount
withhold by the defendants from the date of filing of the suit. I find
interest at the rate of 12% p.a. from the date of filing of the suit, would
meet ends of justice. Hence, the order.
ORDER
A Summary Suit No. 18/2021 is partly allowed with costs.
B Defendants shall jointly and severally pay an amount of
Rs. 1,05,915/- (Rupees One Lakh Five Thousand Nine Hundred
Fifteen only) to the plaintiff along with interest at the rate of 12%
p.a. from the date of filing of the suit i.e. 29-09-2020 till
realization of entire amount.
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C Court Fees be refunded to the plaintiff, as per rules.
D Decree be drawn up accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 13-04-2023. Court Room No.61
Dictated on : 13-04-2023
Transcribed on : 15-04-2023
Corrected on : 15-04-2023
Printed and Signed on: 17-04-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17-04-2023 at 5.55p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
13-04-2023
JUDGMENT/ORDER signed by P. O. on 17-04-2023
JUDGMENT/ORDER uploaded on 17-04-2023
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