Final Order 1

Order Details: Copy of Judgment
Pdf Text: Comm.Suit No. 690/21. 1 Ex-parte Judgment (Exh.15).
MHCC010044122018
Presented on : 03-04-2018
Registered on : 03-04-2018
Decided on : 27-11-2021
Duration : 3 years, 7 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 690 OF 2021
Exh.15.
M/s. Goldwin Healthcare Pvt. Ltd. )
Company incorporated under the )
Companies Act 1956, having its registered )
office address at No. 201, 2nd Floor, )
Bhakti Park, RHB Road, Mulund (W), )
Mumbai 400 080, through its Authrized )
Representative and Director, )
Mr. Raju Popat Bhagwat. ) ....Plaintiff
Versus
Mr. Sachin Shankar Palande )
Proprietor of M/s. Palande Food and )
Beverage, Age not known, )
Having office Address at )
Gala No. 4 & 5, Ground Floor, Ansari House, )
Western Express Highway, Near Maharaja )
Dahisar(East), Mumbai – 400 068. )
And having Residential address at : )
B101, Sai Siddhi Vinayak CHS. Limited., Opp. )
Swastik Park, Reti Bandir Rd., Near “H” Ward )
Office, Dombivali (W) 421 202, Dist. Thane ) ...Defendant
SUIT FOR RECOVERY OF MONEY
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Comm.Suit No. 690/21. 2 Ex-parte Judgment (Exh.15).
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 27th NOVEMBER, 2021.
Mr. Raju Pankar, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a incorporated under the Companies Act,
1956 represented by Director Raju Popat Bhagwat who appointed in
meeting of Board of Director held on 08.12.2017 to represent the
plaintiff and do other necessary thing as mentioned in the authority
letter dt. 08.12.2017. Defendant is proprietor of M/s. Palande Food
and Beverage and doing the work of food, beverages and mineral water
etc. In the first week of January 2017, the defendant approached to the
plaintiffs and represented that the defendant is undertaking job work of
food, beverages and mineral water, refilling and packaging etc. The
plaintiff relying upon the defendant's above representation and decided
to assign job work to the defendant for mineral water. As defendant
approached to the plaintiff to advance an amount to purchase “BOPP
labeling machine” for his smooth business work, the plaintiff advanced
Rs. 23,62,215/ to defendant by executing a loan agreement with the
defendant.
3. It is further stated by the plaintiff that as per agreement the
defendant is ready to pay monthly installment of Rs. 1,02,705/
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Comm.Suit No. 690/21. 3 Ex-parte Judgment (Exh.15).
towards the repayment of above advanced. In that regards, the
defendants gave 23 postdated cheques of Greater Bank to the
defendant. It is further stated that the advanced given to the defendant
by plaintiff is without interest with an intention that the defendant will
purchase machine from the same and complete the plaintiff's job work
within time.
4. It is further stated that the plaintiff also executed job work
agreement dated 27.01.2017. For this work, the plaintiff again paid Rs.
3,00,000/ by way of cheque dt. 31.01.2017 to the defendant as
refundable security deposit to start of production as per agreement
dated 27.01.2017. But the defendant have stopped the production of
said goods. The plaintiff further submitted that out of 23 postdated
cheques which were given by the defendant, the 7 cheques were
bounced with banker's remark on dishonour memo “Funds insufficient”.
After verification, the defendant requested to repay the total balance
amount of Rs. 18,62,215/ to plaintiff. But defendant failed and avoided
to repay the balance outstanding dues despite of repeated demands by
the plaintiff. Hence, the plaintiff sent legal demand notice dated
11.12.2017 through its advocate and requested to repay an amount of
Rs.18,62,215/ @ 24% within period of 15 days from the receipt of the
notice. But after receipt of notice, the defendant failed to repay its dues
on time. Hence, the plaintiff filed case against the defendant. The
plaintiff prayed for recovery of Rs.20,00,580.13 including principal
amount of Rs.18,62,215/ and interest at the rate of 24% p.a. or any
such other rate of the interest as this Hon'ble Court shall determine on
the principal amount from the date of filing of the suit till realization.
5. The defendant was duly served with writ of summons as
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Comm.Suit No. 690/21. 4 Ex-parte Judgment (Exh.15).
per affidavit of service dated 14.03.2019, but he failed to appear and
oppose the claim of the plaintiff. Therefore, my learned Predecessor
passed the exparte order against them, on 02/04/2019.
6. PW 1 Raju Popat Bhagwat deposed on evidence affidavit
(Exh.5) and proved documents filed with list of documents (Exh.6).
Proved documents are at Exh.7 to 13(colly). The plaintiff closed
evidence vide pursis (Exh.14). Heard learned counsel Shri Raju Pankar
for the plaintiff.
7. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff proves that he is
entitled to recover amount of
Rs.20,00,580.13 (including principal
amount of Rs.18,62,215/ and interest
at the rate of 24% p.a. from due date)
from the defendant?
In the Affirmative.
2. Whether the plaintiff proves that he is
entitled to recover interest on the
principal amount of Rs.18,62,215/
from the defendant from the date of the
suit till realization ? If yes, at what rate
of interest ?
In the Affirmative @
10% p.a.
3. What order as to costs ? As per final order.
4. What order and decree ? Suit is partly
decreed.
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Comm.Suit No. 690/21. 5 Ex-parte Judgment (Exh.15).
REASONS
AS TO POINT NOS.1 TO 3 :
8. PW 1 Raju Popat Bhagwat has deposed that he has been
authorized to file the suit and depose by the plaintiff company as per
Board Resolution dated 08/12/2017 (Exh.07). He further stated about
original loan agreement with the defendant dated 21.01.2017 for Rs.
23,62,215/ (Exh.08). He further proved Bank letter dated 20.01.2020
and original bank statement issued by the HDFC Bank,Mulund (W)
branch (Exhibit9). Exhibit 9 reveals that amount of Rs.23,62,215/ is
transferred from the account of plaintiff to the account of the defendant
through RTGS on 01.02.2017. The plaintiff also proved the job work
agreement dt.27.01.2021 between the them vide Exhibit 12. The
plaintiff also proved two cheques of Rs. 3,00,000/ dated 09.10.2017
and 30.10.2017 issued in his favour by defendant as Exhibit 11(colly).
The plaintiff also proved 23 cheques issued by the defendants as Exh.10
(colly). The plaintiff has issued notice dated 11/12/2017 under Section
138 of the Negotiable Instruments Act (Exh.13(colly) to the defendants.
The said notice was duly served upon the defendants as per
acknowledgment and track receipt report dt.11.12.2017. Contents in
notice (Exhibit–13Colly) reveals that the defendant was liable to pay
total amount of Rs. 26,62,215/ and he actually repaid Rs. 8,00,000/
as on 31.05.2017 through RTGS. For these reasons, the plaintiff
claimed remaining amount of Rs. 18,62,215/.
9. The loan agreement (Exhibit 8) contains clause 10 stating
that the company will charge interest at the rate of 10% as penalty on
installment amount in case of cheque bounced of installment cheque.
Job work agreement (Exhibit 12) is silent on the point of interest on
the security deposit of Rs.3,00,000/. Considering these aspects,
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Comm.Suit No. 690/21. 6 Ex-parte Judgment (Exh.15).
contractual rate of interest is 10%. Therefore, interest can be awarded
at the same rate. The plaintiff has succeeded in establishing his claim in
respect of the amount mentioned in the prayer clause. Costs of the suit
is liable to be imposed on the defendants. In the light of above
discussion, I record my findings as to point no.1 in the affirmative. I
also record finding as to point no.2 in the affirmative with interest rate
as discussed above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 690/2021 is partly decreed.
2. The defendant is directed to pay amount of
Rs.20,00,580.13 (Rupees Twenty Lakhs Five Hundred
Eighty and Paise Thirteen Only) to the plaintiff within three
months from the date of decree.
3. The defendant is further directed to pay interest at the
rate of 10% p.a. on principal amount of Rs.18,65,215/
from the date of the suit till realization.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 27/11/2021. Mumbai.
1. Dictated online on : 27/11/2021.
2. Signed on : 27/11/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 690/21. 7 Ex-parte Judgment (Exh.15).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/11/2021. 1.40 p.m. Mrs P.R.Wagh
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 27/11/2021.
Judgment/Order signed by P.O. on 27/11/2021.
Judgment/Order uploaded on 27/11/2021.
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