Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 23-04-2019
Registered on : 17-06-2019
Decided on : 30-03-2021
Duration : Y-01, M-09, D-13
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO.26 OF 2019
M/s. Bhavi International Private ]
Limited, a Company incorporated ]
under the Provisions of the Companies Act,1956 ]
having its office at 209, Mewad Patanwala ]
Industrial Complex, L.B.S. Marg, Opp. Shreyas ]
Cinema, Ghatkopar (West), Mumbai – 400 086. ]
Maharashtra through authorized signatory ]
Mr. Umesh Shah. ] ....Plaintiff
V/s
1. M/s. Behl Chemicals /Behal Chemicals ]
A Proprietory firm having its office address ]
at 135, Subhash Nagar, Street No.16, Gandhi ]
Colony, Muzaffarnagar – 251 001, Uttar ]
Pradesh. ]
2. Mr. Rajan Behl, Authorized Signatory of ]
Defendant no.1 having office at 135, Subhash ]
Nagar, Street No.16, Gandhi Colony, ]
Muzaffarnagar- 251 001, Uttar Pradesh ] ...Defendants
APPEARANCE:-
Ld. Adv. Mr. Parag Shah for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 30th March, 2021.
Claim : Suit for recovery of Money.
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EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree against
defendants, directing the defendants to pay to the plaintiff a sum of
Rs.12,24,557/-(Rupees Twelve Lakhs Twenty Four Thousand, Five
Hundred Fifty Seven Only) further interest on principal sum of
Rs.11,32,800/-(Rupees Eleven Lakhs Thirty Two Thousand Eight
Hundred only) at the rate of 18% per annum from the date of filing of
suit till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
It is case of the plaintiff that defendant no. 2 had
approached the plaintiff for supplying goods in the year 2018-2019.
The request was accepted and the plaintiff had raised the invoices
bearing no. LOCAL/D/034/18-19 dated 17.08.2018 for the goods
worth of Rs. 11,32,800/-. The defendants have issued post dated
cheques all are drawn on State Bank of India as follows :
Sr.
No.
Date Cheque No. Amount (In INR)
1 20th October, 2018 357010 5,00,000/-
2 05th November, 2018 356999 5,00,000/-
3 15th November, 2018 357011 1,32,800/-
Total 11,32,800/-
3. As per order placed by defendants, the goods were
supplied to defendants by the plaintiff. The goods were received and
there was no dispute regarding quality, quantity and price of the goods.
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It is case of the plaintiff that the cheques of defendants deposited by the
plaintiff were not honored. This fact was informed to the defendants.
The defendants gave written confirmation by email to the plaintiff. As
per confirmation, the plaintiff again deposited the same cheques in his
bank for encashment within the period of its validity. All cheques were
dishonoured again. The plaintiff contacted to the defendants and
intimated them to do the wire transfer via RTGS. The defendants
confirmed that they will release the funds. The defendants did not pay
the amount to the plaintiff. The plaintiff, therefore, had issued notice
dated 04.01.2019 for dishonor of said cheques of defendants under
Section 138 of the Negotiable Instrument Act, 1881. The notice was
not answered by defendants. The plaintiff has already filed criminal
complaint against the defendants bearing No.SS/355/2019 charged
under section 138 r/w section 141 of the Negotiable Instrument Act,
1881 before the Ld. Metropolitan Magistrate, 72nd Court, Vikhroli,
Mumbai. The plaintiff had instituted the present suit for recovery of
amount of Rs.12,24,557/- with further interest on principal sum of
Rs.11,32,800/- at the rate of 18% per annum from the date of filing of
suit till its realization.
4. The defendants had not appeared in the suit. The suit
therefore proceeded exparte against defendants.
5. The following points arise for my determination with my
findings thereon and the reasons to follow :-
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery amount of Rs.12,24,557/- 'Partly Affirmative'
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(Rupees Twelve Lakhs Twenty Four
Thousand, Five Hundred and Fifty Seven
Only) further interest on principal
amount of Rs.11,32,800/- at the rate of
18% p.a. from the date of the filing of
suit till its realization?
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
6. Heard learned Advocate Mr. Paresh Shah for the plaintiff.
7. The plaintiff in support of its case had examined Umesh Shah at
Exh.26. He had reiterated all the contentions levelled against
defendant in the plaint. The plaintiff had relied upon following
documents (Exh.04):
Sr. No. Particulars Exh.
1 Certificate true Extract of the Board Resolution
dated 08 August, 2019.
5
2 Original Proforma Invoice dated 17th August,
2018.
6
3 Original Post-Dated Cheques dated 20th
October, 2018, 5th November, 2018, 15th
November, 2018 respectively.
7 colly
4 Photo Copy of the Lorry receipt dated 12th
September, 2018.
8
5 Original Invoice dated 12th September, 2018 9
6. Original Bank Memo issued by Bank of Baroda,
Ghatkopar (East) Branch dated 20th November,
2018
10
7.
(colly)
Printouts of the E-mail correspondence
between the plaintiff and the Defendants.
11
(colly)
8 Original Bank Memo issued by Bank of Baroda,
Ghatkopar (East) Branch dated 13th December,
12
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2018
9 Copy of the Ledger Account of Defendant. 13
10
(colly)
Printouts of the E-mail Correspondance dated
21st December and 24th December.
14
11 Office Copyof the Advocates Notice issued by
the Plaintiff to the Defendants dated 4th
January, 2019
15
12 Original RPAD Receipt. 16
13 Copy of the Track Consignment Report 17
14 Copy of the Criminal Complaint bearning No.
355/SS/2019 in the CMM Court, Vikhroli,
Mumbai.
8. The evidence of PW-1 Umesh Shah is in accordance with
allegations made by the plaintiff in the plaint. The evidence of the
witness Umesh Shah- PW-1 shows as per request by the defendants, the
plaintiff had supplied the goods on 17.08.2018 worth of Rs.
11,32,800/- to the defendants. The defendant had issued the cheques.
The said cheques were not honored.
9. The evidence of P.W.-1 Umesh Shah shows that the goods were
received by the defendants, the amount was not paid. The defendants
were called upon by the plaintiff by notice to make payment, the
payment was not made by defendants.
10. It appears from the evidence of the plaintiff that transaction
of the plaintiff and defendants were made in the year 2018-2019. The
evidence of plaintiff shows that the plaintiff has supplied the goods
worth of Rs. 11,32,800/- bearing invoice no. LOCAL/D/034/18-19
dated 17/08/2019 which is at Exhibit-6 and again plaintiff issued
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invoice dated 12th September, 2018 bearing no. 25DV/004/18-19
(Exhibit- 9). It is evidence of the plaintiff that the said goods were
supplied by the plaintiff by road delivery by Lorry Receipt bearing no.
1226 dated 12th September issued from Vapi to Muzaffarnagar issued
by Raghav Logistic, Vashi, Navi Mumbai. The photocopy of said lorry
receipt attached by the plaintiff (Exhibit -8) with his plaint. It shows
that the plaintiff had supplied the goods to the defendants.
11. It appears from the evidence of the plaintiff that the
defendants had issued three cheques Exh.7 against the goods supplied
by the plaintiff bearing No.357010 dated 20.10.2018, cheque
No.356999 dated 05.11.2018 and cheque No.357011 dated 15.11.2018
in the month of which was annexed by the plaintiff which was
dishonored with remark ''Funds Insufficient''. The conversation between
the plaintiff and defendants via Email dated 21st November, 2018 and
21st and 24th December, 2018 vide Exhibit-11(colly) and Exhibit-14,
shows that the plaintiff had intimated the defendants about their
dishonoured cheques. The plaintiff also attached his ledger account of
defendants (Exhibit-13) which shows that the dues outstanding against
the defendant and details of dishonored cheques.
12. The defendants were served with suit summons, but had
failed to appear in the suit. The suit proceeded ex-parte against the
defendants and an inference that the defendants has no case against the
claim of the plaintiff can safely be drawn against the defendant. The
evidence of the plaintiff have gone unchallanged. The documents on
record clearly shows goods worth of Rs.11,32,800/- was supplied by the
plaintiff to the defendant. The plaintiff has claimed interest at the rate
18% p.a. Admittedly, the transaction is commercial. The plaintiff have
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not produced any evidence to show the agreed rate of interest on
default of payment was to be at the rate of 18% p.a.
13. The question which needs to be considered is what rate of
interest needs to be applied for the defendants in payment made by the
defendants.
Considering the transaction is commercial it would be
appropriate to direct the defendants to pay to the plaintiff sum of Rs.
11,32,800/- (Rupees Eleven Thousand Thirty Two Thousand and Eight
Hundred) with interest at the rate 12% per annum from the date of
transaction i.e. 17th August 2018 till its realization.
Hence, I answered point No. 1
“in partly Affirmative.” In
the result, following order is passed.
ORDER
1. Suit is partly decreed with costs.
2. The defendants are directed to pay to the plaintiff sum of Rs.
11,32,800/- (Rupees Eleven Thousand Thirty Two Thousand and Eight
Hundred) with interest at the rate 12% per annum from the date of
transaction i.e. 17th August 2018 till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 30.03.2021 Gr.Bombay at Mumbai.
Dictated on : 30.03.2021
Transcribed on : 31.03.2021
Signed by H.H.J.on : 08.04.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.04.2021 at 12.32 p.m.
UPLOAD DATE AND TIME
(Mrs. P.R.Wagh)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
30.03.2021
Judgment/order signed by P.O. on 08.04.2021
Judgment/order uploaded on 22.04.2021
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