Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.676/2021 : 1 : Judgement
MHCC010044522018
Presented on : 04042018
Registered on : 13062018
Decided on : 19032024
Duration : YY: MM : DD
05 : 11 : 15
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 676 Of 2021
(OLD SUMMARY SUIT NO.600 OF 2018)
Exhibit14
Nita Bharat Kumar Ruparel
Proprietress of M/s. Bharat Kumar & Co.
having office at Shop No.61, Thakersi
Gopalji Building, 2nd Floor, 12/16, Old
Hanuman Lane, 1st Cross Lane, Kalbadevi
Road, Mumbai, through her constituted
Attorney Ms. Pravina Naranji Ruparel
residing at 503, Virji Pragji Building, 69E,
Shri Kutchi Lohana Niwas, Mumbai
400010. ... Plaintiff.
V/s.
Virendra Aeer
Proprietor of M/s. Pusv Cashew Traders,
Plot No. 549, Mardi CHS Ltd Sector 5,
Oxform Public Sector, Charkop Kandivali
West, Mumbai 400067. ... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 19th DAY OF MARCH 2024
: Appearances:
Ld. Advocate D. J. Jani for Plaintiff.
Defendant Exparte.
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Com. Suit No.676/2021 : 2 : Judgement
JUDGMENT
1. The plaintiff has filed the present suit for recovery of sum of
Rs.4,98,150/ together with further interest @ 12 % per annum on
principal amount of Rs.4,05,000/ from the date of filing of the suit till
its full realization.
Initially the plaintiff has filed Summary Suit No.600 of 2018 for
recovery of above said amount against the defendant. However, later on
as per office order dated 06.04.2021, it was converted into the
Commercial Suit.
2. Briefly stated facts of the case are as under:
The plaintiff is the Proprietress of M/s. Bharat Kumar and Co.
The plaintiff's business is being managed by her sisterinlaw and
Constituted Attorney Ms. Pravina Naranji Ruparel right from the
beginning. The plaintiff is dealing with raw cashew nuts and other dry
fruits.
3. The defendant is doing business in the name and style “M/s.
Pusv Cashew Traders” as Proprietor and dealing in Konkan raw cashew
nuts.
4. The plaintiff has paid an amount of Rs.12 Lakhs to the defendant
for supply of raw cashew nuts on 12.04.2016 by RTGS. It was agreed
that defendant would supply 10 Tonnes of cashew nuts to the plaintiff,
else, the defendant would return said amount with interest @ 12% per
annum.
5. It is submitted that, the defendant has failed and neglected to
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Com. Suit No.676/2021 : 3 : Judgement
supply cashew nuts as agreed. Thereupon, on repeated request, the
defendant refunded a sum of Rs. 7,95,000/ to the plaintiff leaving
behind balance of 4,05,000/. The defendant executed promissory note
dated 13.06.2017 in favour of the plaintiff, promising therein, he would
returned the balance amount together with interest. Thereafter, the
plaintiff has also issued Debit Note dated 27.09.2016 to the defendant,
which is received by him on 14.10.2016.
6. It is submitted that in spite of promise and in spite of repeated
demands by the plaintiff, the defendant failed to repay the amount.
Therefore, the plaintiff through her advocate issued notice on
23.01.2018, thereby called upon the defendant to repay amount of Rs.
4,05,000/ with interest. However, the defendant failed to repay the
amount. Hence, the suit.
7. Inspite of service, the defendant failed to appear. Hence, suit
proceeded Exparte him vide order dated 05.10.2021.
8. In support of her claim, the plaintiff has filed claim affidavit of
PW1 Pravina Naranji Ruparel (Exh.6). The plaintiff relied upon the
documents filed along with List (Exh.7).
9. Heard, the Ld. Advocate for the plaintiff. Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.4,98,150/
together with further interest @ 12 Partly Yes.
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Com. Suit No.676/2021 : 4 : Judgement
% per annum on principal amount
of Rs.4,05,000/ from the date of
filing of the suit till its full
realization as claimed?
2. What Order and Decree? As per final order.
REASONS
As to point no.1:
11. PW1 Ms. Pravina being Power of Attorney, deposed as per the
contents of the plaint averments; hence I do not want to reproduce the
same to avoid the repetition. The plaintiff has filed Copy of Power of
Attorney dated 28.11.2017 (Exh.9) thereby she be permitted to depose
on behalf of the plaintiff being aware of the facts of the case.
12. It is the case of the plaintiff that, she had given amount of Rs.12
lakhs to the defendant for supply of raw cashew nuts. However, the
defendant failed to supply the same. Hence, he refunded amount of
Rs.7,95,000/ leaving behind balance of Rs.4,05,000/. He executed
promissory note dated 13.06.2017, thereby agreed to repay balance
amount with interest. But he failed to do so. The plaintiff also issued
Debit note on 27.09.2016. As the defendant failed to repay the amount,
hence, the plaintiff issued notice on 23.01.2018, but of no use. The
plaintiff relied on the documents such as; Original Receipt dated
29.04.2016 (Exh.10); Original Promissory Noted dated 13.06.2017
(Exh.11); Office Copy of Debit Note dated 27.09.2016 (Exh.12) and
photocopy of advocate letter dated 23.01.2008 (Exh.13).
13. Herein it is to be seen that, in spite of receiving writ of summons
defendant failed to appear therefore, in view of Order 37 Rule 2 (3) of
the Code of Civil Procedure, “if defendant failed to enter an appearance
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Com. Suit No.676/2021 : 5 : Judgement
then an allegation in the plaint shall be deemed to be admitted and the
plaintiff shall be entitled to a decree for any sum not exceeding the sum
mentioned in the summons, together with interest at the rate specified”.
14. Herein it is to be seen that, in spite of receiving notice dated
23.01.2018, defendant failed to repay the amount. The suit is lodged on
04.04.2018. Thus, it is well within limitation. Therefore, on the basis of
oral and documentary evidence the plaintiff duly proved that the
defendant is liable to pay principal amount of Rs.4,05,000/. So far as
rate of interest is concerned, I am of the view that looking to the nature
of business transaction and current bank rate of interest, if the
defendant is directed to pay the interest @ 9% p.a., then it will sub
serve the purpose. Thus, in view of my above discussion, I answer to
point No.1 in partly affirmative.
As to Point No.2.
15. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.676 of 2021 is partly decreed with Costs.
2. Defendant does pay the amount of Rs.04,05,000/ with further
interest @ 9% per annum from the date of its due till its full realization.
3. Decree be drawn up accordingly.
4. Commercial Suit No.676 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.19.03.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
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Dictated on : 19.03.2024
Directly typed on : 19.03.2024
Signed on : 19.03.2024
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Com. Suit No.676/2021 : 7 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 20.03.2024 NAME OF STENOGRAPHER
TIME: 01.52 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
19.03.2024
JUDGMENT/ORDER signed by
P.O. on
19.03.2024
JUDGEMENT/ORDER uploaded on 20.03.2024
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