Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Sum Suit No. 699/2021
MHCC010044152018
Lodged on : 03.04.2018
Admitted on : 24.07.2018
Decided on : 03.10.2022
Duration : Y M D
4 2 8
COMMERCIAL SUIT NO. 699 of 2021
CNR NO. : MHCC010044152022
Exh.22
Ramaniklal S. Gosalia & Company,
a partnership firm having its
office at National House,
608, B. J. Marg, Jacob Circle,
Mumbai – 400 011
through its
Constituted Attorney
Mr. Mayur Surendra Shah ...Plaintiff
Versus
1) Ganga Polymerse
2) Bhavesh Savalia
3) Mukesh Savalia
All are residing at Plot No. 289,
Samit Industries, Mandvi Road,
KaranjGIDCKim,
Surat – 394 110. ….Defendants
Appearance:
Adv. Mr. Rutash Jadhav for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 03rd October, 2022
-- 1 of 7 --
2 Judgment in Com. Sum Suit No. 699/2021
J U D G M E N T
(Delivered on : 03.10.2022)
This is a suit for the recovery of the amount of
Rs.16,79,933/ along with interest at the rate of 18% p.a. from the
defendants.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a partnership firm and interalia carries on
the business of import and distribution of chemicals and polymers. The
defendant No. 1 is partnership firm and defendant No.2 is the partner
of the defendant No.1 firm. Plaintiff further submitted that pursuant to
the order placed by the defendants, the plaintiff has sold, supplied and
delivered to the defendants PVC Resin and have raised their invoices
upon the defendants. The defendants have received said goods without
any protest. The defendants have made a part payment of a sum of
Rs.72,888/ on 9.6.2017, Rs. 2,00,000/ on 15.06.2017, Rs. 2,50,000/
on 30.06.2017. Since, the defendants did not pay the outstanding
amounts inspite of repeated requests, the plaintiff through their
advocate's notice dated 26.10.2017 called upon the defendants to pay
the outstanding amount. Plaintiff further stated that after receipt of the
notices the defendants have made a payment of Rs.2,25,000/.
However, the total amount of Rs. 16,79,933/ is due and payable by the
defendants. Hence, this suit is filed by the plaintiff for the recovery of
an amount of Rs. 16,79,933/ along with interest at the rate of 18% p.a.
from the defendants.
3. The suit summons was duly served on the defendants by
R.P.A.D. But the defendants failed to appear before the Court. Hence, in
-- 2 of 7 --
3 Judgment in Com. Sum Suit No. 699/2021
view of order dated 11.06.2022, the suit is proceeded exparte against
the defendants.
4. In support of the claim, the plaintiff examined its power of
attorney namely Mr. Mayur Surendra Shah at Exh.9. The plaintiff also
filed the documentary evidence at Exh. 11 to 20. The evidence closure
pursis of the plaintiff is at Exh.21.
5. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff proves that an
amount of Rs.16,79,933/ is
outstanding from the defendants ?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of Rs. 16,79,933/
from defendants ? If yes, at what rate
of interest ?
Yes @ 12 % p.a.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
6. Heard Learned Advocate Mr. Rutash Jadhav for the
plaintiff.
As to Point Nos.1 & 2
7. It is the case of the plaintiff firm that the plaintiff has sold,
-- 3 of 7 --
4 Judgment in Com. Sum Suit No. 699/2021
supplied and delivered to the defendants PVC Resin and have raised
invoices upon the defendants. The defendants have purchased the
goods of Rs.24,27,821/. The defendants have made a part payment.
However, the principal amount of Rs.16,79,933/ is outstanding from
the defendants. At the outset, it is to be noted that the defendants did
not appear in this suit nor contested the claim of the plaintiff. The
defendants have not denied or disputed the averments made by the
plaintiff in the plaint. Therefore, inference can be drawn that
averments made by the plaintiff in the plaint were deemed to be
admitted by the defendants.
8. In support of the pleading, the plaintiff has examined the
power of attorney Mr. Mayur Surendra Shah at Exh.09. The suit is also
filed by the plaintiff through power of attorney Mr. Mayur Shah.
Therefore, he knows the contents of the plaint. PW1 deposed in
consonance with averments made in the plaint. According to the power
of attorney of the plaintiff, on the request of defendants the plaintiff
firm sold PVC Resin worth of Rs. 24,27,821/ and have raised invoices
upon the defendants. He deposed that defendants have made a part
payment. The defendants did not pay the outstanding amount inspite of
repeated request. The principal amount of Rs. 16,79,933/ is
outstanding from the defendants. The aforesaid evidence of plaintiff
was not challenged by the defendants. The defendants failed to conduct
crossexamination of the plaintiff. Thus, it is clear that the oral evidence
of the plaintiff is remained unchallenged. Hence, I have no reasons to
disbelieve the evidence of the plaintiff. The oral evidence of the plaintiff
is supported by the documentary evidence. The plaintiff filed on record
-- 4 of 7 --
5 Judgment in Com. Sum Suit No. 699/2021
the invoices at Exhs. 15 to 17. These docments shows that the plaintiff
have raised invoices upon the defendants on 21.04.2017 and
25.04.2017. The email Exh. 12 and 14 shows that the plaintiff firm
agreed to supply and deliver the PVC Resin with terms and conditions.
The statement of account Exh. 20 also shows that the total amount of
Rs.16,79,933/ is outstanding from the defendants. The aforesaid
documentary evidence tendered by the plaintiff is unchallenged by the
defendants. Therefore, I have no reason to disbelieve the documentary
evidence tendered by the plaintiff.
9. The plaintiff by leading oral and documentary evidence
sufficiently established that an amount of Rs. 16,79,933/ is outstanding
from the defendants. Therefore, the plaintiff is entitled to recover the
said amount from the defendants.
10. So far as interest rate is concerned, the plaintiff has claimed
interest at the rate of 18% per annum. Interest at the rate of 12% per
annum would be just and proper considering commercial nature of
transaction. Costs of the suit is liable to be imposed on the defendants.
In the light of above discussion, I record my finding as to points nos. 1
in the affirmative and point no. 2 accordingly. Hence, I pass the
following order:
ORDER
1) Commercial Suit No.699 of 2021 is decreed with costs.
2) The defendants are directed to pay an amount of Rs.16,79,933/
(Rs. Sixteen lakhs seventynine thousand nine hundred thirty
three only) to the plaintiff jointly and severally along with
-- 5 of 7 --
6 Judgment in Com. Sum Suit No. 699/2021
interest at the rate of 12% per annum from the date of filing of
the suit till realization within two months from the date of this
order.
3) Defendants shall bear the costs of the suit.
4) Court fee, if any, be refunded as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 03.10.2022 (Shri. A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 03.10.2022
Typed on : 03.10.2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04.10.2022 1.30 p.m. Mrs. K. S. Bhosale
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
03.10.2022
Judgment/order signed by P.O on 03.10.2022
Judgment/order uploaded on 04.10.2022
-- 6 of 7 --
7 Judgment in Com. Sum Suit No. 699/2021
-- 7 of 7 --