Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 Summ. Suit No.508/2018
Filed on : 05.04.2018
Registered on : 17.04.2018
Decided on : 30.01.2020
Duration : Year01 Month09 Days14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 508 OF 2018
(CNR NO.MHCC010045392018)
Exhibit11
JAMNADAS RUTTONSEY & CO.
A Partnership firm registered under the
provisions of Partnership Act, having its
address at 24, Bell Building 19 Sir Phiroze
Shah Mehta Road, Mumbai – 400 021. ….Plaintiff
V/s.
1. CROWN FOOD LTD. INC.
A company incorporated under the
The laws of United States of America,
having its address at 13032, Park Street,
Santafe Springs, CA 90670, United States
of America.
2. VISHWAJIT JOSHI,
Age : Adult.
Address:
(i) 13032, Park Street, Santafe Springs,
CA 90670, United States of America.
(ii) 162, Atam Nagar, Police Station,
Model Town, Ludhiana, Punjab.
-- 1 of 7 --
Judgment 2 Summ. Suit No.508/2018
3. MAHIMA JOSHI,
Age : Adult.
13032, Park Street, Santafe Springs,
CA 90670, United States of America. ….Defendants.
SUIT FOR RECOVERY OF RS.45,35,967.05/
Appearance:
Mr. Sakhardande H/f Adv. Mr. Tushar Goradia, for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
DATE : 30th January, 2020.
: JUDGMENT :
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
The facts of the case are as under :
2. The Plaintiff is a Partnership firm having under Partnership Act,
doing business in import & export. The defendant No.1 is a company
incorporated under the laws of United States of America. Defendants
No.2 & 3 are the personsincharge for the affairs of defendant No.1.
Defendants No.2 & 3 are husband and wife.
3. Plaintiff sold and delivered the goods worth Rs.30,99,793/
(US $46,966.56/) to the defendants under invoice no. EX/6/671671A
2015 dated 06.08.2015. The defendants failed to pay the total sum of
INR Rs.30,99,793/ inspite of various requests made by the plaintiff and
receipt of legal notice. Hence, plaintiff is constrained to file the suit for
-- 2 of 7 --
Judgment 3 Summ. Suit No.508/2018
recovery of the said amount. The total suit claim of the plaintiff is for
Rs.45,35,967.05/.
3. The suit summons were duly served on the defendant but he failed
to appear. Hence, suit is posted for judgment as per order XXXVII Rule
2(3) of Code of Civil Procedure 1908 judgment.
4. The following points arise for my determination and my findings
thereon are as under for the reasons stated there under:
Sr.
No.
POINTS FINDINGS.
1. What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.28,79,353/ with
interest
@ 15 % per annum.
2. What order and decree? As per final order.
: REASONS :
5. The witness Mr. Pankaj Goel has filed her affidavit at Exhibit2 . In
order to prove the case of the plaintiff filed following documentary
evidence.
Exhibit.
No.
Description of documents Date
Exhibit4 Original invoice bearing No.EX/6/671
671A2015 issued by the plaintiff in favour
of the defendant for an amount of US $
46,966.56/ (INR Rs.30,99,793/)
06.08.2015
Exhibit5 Certified copy of Bill of Lading No.
MUM/15/LAX/15001C/C.
19.08.2015
Exhibit6 Certified copy of cheque bearing
No.001446 issued by defendant in favour
of the plaintiff for an amount of US $ 4600
equivalent to INR Rs.3,24,725.47/
21.04.2017
-- 3 of 7 --
Judgment 4 Summ. Suit No.508/2018
Exhibit.
No.
Description of documents Date
Exhibit7 Certified copy of memo of Dishonor in
respect of cheque No.001446 with the
remark “NSF” i.e. Nonsufficient funds.
01.05.2017
Exhibit8 Certified copy of cheque bearing
No.001447 issued by defendant in favour
of plaintiff for an amount of US $ 5000
equivalent to INR Rs.3,52,962.47/.
30.04.2017
Exhibit9 Certified copy of memo of Dishonor in
respect of cheque No.001447 with the
remark “NSF” i.e., Nonsufficient funds.
10.05.2017
Exhibit10 Original letters forwarded by the advocate
for the plaintiff to the defendants
alongwith its postal records and
acknowledgment.
06.09.2017
AS TO POINT NO.1:
6. All the documents produced by the plaintiff at list Exhibit4 to 10
go to establish that plaintiff has sold and delivered total goods worth of
Rs.30,99,793/ to defendants. The documents further prove that the
amount of Rs.28,79,353/ is due and payable to the plaintiff from
defendants towards delivered of goods. But, defendants failed to pay
total amount of Rs.28,79,353/ purchase of goods. The documents at
list Exhibit4 to Exhibit10 go to establish that defendants are liable to
pay Rs.28,79,353/ to the plaintiff on the date of filing of the suit
towards the purchase of goods and the defendants are liable to pay the
balance amount to the plaintiff. Even though, plaintiff has claimed
Rs.45,35,967.05/, but plaintiff has not explained how it has calculated
the said amount. It appears that plaintiff has calculated amount of
Rs.45,35,967.05/ by levying interest of Rs.24% per annum on the
principal amount of Rs.28,79,353/. In this background, it is held that
-- 4 of 7 --
Judgment 5 Summ. Suit No.508/2018
plaintiff is entitled to recover sum of Rs.28,79,353/ from the
defendant.
7. The plaintiff has claimed 18% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceed 6% per annum, if the transaction is commercial and
there is no contract pertaining to the same between the parties. In the
present case the transaction is a commercial one and there is no express
contract existing between the parties as to the rate of interest of 18%
per annum which shall be levied. Therefore, rate of interest at the rate
of 15% per annum would be just and proper to be awarded on the
principal sum adjudged i.e. amount of Rs.28,79,353/. Hence, point
no.1 is answered in the affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point no.1, it is held that the
plaintiff is entitled to recover Rs.28,79,353/ from the defendant with
interest at the rate of Rs.15% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from the defendant. Hence, in answered to point no.2, I proceed to pass
the following order :
: ORDER:
1. The defendants jointly and severally shall pay
Rs.28,79,353/ (Rs. Twenty Eight Lakh Seventy Nine
Thousand Three Hundred Fifty Three Only) to the
plaintiff with interest at the rate of 15% per annum
from the date of filing of the suit till its realization.
-- 5 of 7 --
Judgment 6 Summ. Suit No.508/2018
2. Defendants do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per the rules.
(S. G. Shaikh)
Adhoc Judge
City Civil Court,
Date : 30.01.2020 Gr. Bombay
Typed on : 30.01.2020.
Signed on : 30.01.2020.
-- 6 of 7 --
Judgment 7 Summ. Suit No.508/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
30.01.2020 05.05 p.m. Mr. Tushar P. Kuwar
Name of the Judge H.H.J. SABIHA G. SHAIKH.
Adhoc Judge.
(Court Room No.59)
Date of pronouncement of Order 30.01.2020
Order signed by P.O. on 30.01.2020
Order uploaded on 30.01.2020
-- 7 of 7 --