Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Lodged on : 06.04.2018
Registered on : 08.08.2018
Decided on :29.10.2021
Duration : 03Y 06M 23D
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 824 OF 2018
( CNR No.MHCC010046212018)
SANJAY PRAKASHMAL JAIN ]
Proprietor of M/s. NEXUS IMPEX ]
An adult, aged about 35 years, ]
Occupation: Business, Indian ]
Inhabitant of Mumbai, having address]
at B/4, Ground Floor, Mahavir ]
Darshan, Sai Dham Complex, ]
26, Khambata Lane, 8th Khetwadi ]
Lane, Mumbai 400 004. ] .. Plaintiff.
V/s.
1. YASHWANT ENGINEERING ]
PRIVATE LIMITED, ]
A Private Limited Company ]
registered under the provisions of ]
the Companies Act, 1956. ]
2. LAKKUR NAGARAJIAH GOPALA ]
Director of Yashwanth Engineering ]
Private Limited, adult, age not known]
3. NAGRAJ NALINA ]
Director of Yashwanth Engineering ]
Private Limited, adult, full name ]
age not known ]
All Defendants having common ]
address at SY No. 130, Machohalli ]
Gate Magadi Main Road, ]
Vishwaneedam Post, ]
Banglore560091, Karnataka. ]..Defendants.
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Advocate Mr.Mauya for the plaintiff.
Defendants Exparte.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 29th OCTOBER, 2021
JUDGMENT
The suit is instituted for the recovery of amount of
Rs. 2,82,475/– along with interest on the amount of Rs. 1,72,195/– at
the rate of 24% per annum from the date of institution of the suit till
realisation of the decreetal amount.
2. It is the case of plaintiff that plaintiff is dealing with
business of stainless steel pipes, sheets, fittings, carbon steel, alloy steel,
ferrous and nonferrous metals. Defendants number 2 and 3 are the
directors of defendant number 1 company.
3. It is the case of plaintiff that plaintiff sold and delivered
HRSS Coil material to the defendants as per defendants purchase order
No. YEPL/PO/NI/LGN/30/2014 dated 16/03/2015. Plaintiff raised tax
invoice No.EX–307 dated 20/03/2015 for the amount of Rs.4,22,195/.
The material was dispatched as per delivery channel No. EX – 307 dated
20/03/2015 and lorry receipt No. 541400 dated 20/03/2015.
Defendants accepted the material without any objection regarding
quality, quantity and/or rates.
4. It is the case of plaintiff that defendants were required to
pay the amount within 30 days. Defendants issued cheque bearing No.
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211031 to plaintiff dated 30/04/2015 for consideration of
Rs.4,22,195/–. Plaintiff presented the said cheque to his banker for
encashment. However, the cheque was dishonoured. When the said
fact was informed to the defendant, he assured to pay the amount at the
earliest.
5. It is the case of plaintiff that defendants paid sum of
Rs.2,50,000/– to plaintiff on 23/07/2015. However, the amount of
Rs.1,72,195/– was left unpaid by the defendants. Plaintiff has
maintained ledger account of defendants in its due course of business.
Plaintiff has recorded all the transactions with defendants in the said
ledger.
6. It is the case of plaintiff that he issued a legal notice to
defendants on 19/05/2016 calling them upon to pay the balance
amount. The defendants did not pay the amount even after receiving
the notice. Plaintiff again issued a legal notice on 05/03/2016 which
was also received by the defendants. Defendants did not reply the
notice nor they paid the amount. Hence, plaintiff was constrained to
institute the present suit for recovery of Rs.1,72,195/– balance towards
the principal amount and interest at the rate of 24% per annum from
24/07/2015 to 25/03/2018 amounting to Rs. 1,10,280/–. As per the
case of plaintiff total amount due from defendant is Rs. 2,82,475/.
7. The defendants were duly served but failed to appear
before the Court. Hence, the suit proceeded ex parte against the
defendants.
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8. Considering the plaint, documents on record and
submissions of learned advocate for plaintiff, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved that defendants
have not paid the amount of Rs. 1,72,195/–
to plaintiff out of the sale transaction?
In the
Affirmative
2 Whether plaintiff prove that he is entitled to
get interest at the rate of 24% per annum?
Partly In the
Affirmative
3 Whether plaintiff is entitled to a decree as
prayed for?
Partly In the
Affirmative
4 What Order and decree? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 4:
9. All four points are related to each other Hence, they are
discussed at once to avoid the repetition.
10. Plaintiff has filed affidavit of examination in chief at
Exhibit7 and had supported all the contentions in the plaint. He has
proved all the documents filed along with the list. Plaintiff has
produced on record email copy of purchase order at Exhibit8 which
shows that the 2000 kg of quantity of HRSS Coil was ordered at the rate
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of Rs. 185/– per unit. Plaintiff has produced the tax invoice of
Rs.4,22,195/– at Exhibit9 . Plaintiff has produced delivery challan at
Exhibit10 and lorry receipt at Exhibit11 . All these documents show
that the quantity of 2000 kg of the said Coil was ordered by the
defendant and plaintiff supplied 2030 kg of quantity. It appears from
the lorry receipt that the quantity was dispatched. Defendants have not
raised any objection regarding additional quantity of 30 kg. They have
accepted the same.
11. Plaintiff has produced on record the cheque which was
bounced bearing No. 211031 at Exhibit12 issued by the defendants
worth Rs.4,22,195/–. Plaintiff has filed on record a copy of demand
notice at Exhibit13 which appears to be received by the defendants. As
there is a single transaction, there is no need to produce the ledger
account extract on record.
12. Defendants failed to appear before the Court though duly
served. They have not filed their defence. The defendants have not
challenged the oral and documentary evidence led by the plaintiff.
13. In the above circumstances I have come to the conclusion
that plaintiff has proved that it sold the goods worth Rs.4,22,195/ to
defendants and the defendants made part payment of Rs.2,50,000/ of
the said goods. However, the defendants failed to pay the balance
amount of the goods. Therefore, they are liable to pay the balance
amount of Rs,1,72,195/ to plaintiff.
14. Plaintiff has claimed interest at the rate of 24% per annum.
However, there is no basis for the said rate of interest. The invoice
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shows that plaintiff is entitled to the 24% rate of interest. However,
this rate is exorbitant. In my considered opinion interest at the rate of
12% per annum would be the appropriate rate of interest in the present
matter.
15. In view of all above discussion, I answer point No. 1 in the
affirmative, point Nos. 2 and 3 partly in the affirmative and in answer
to point No.4, I proceed to pass following order.
O R D E R
1. The suit is partly decreed with costs.
2. Defendant Nos.1 to 3 are directed to pay jointly and
severally the amount of Rs.1,72,195/ to plaintiff along with
interest thereon at the rate of 12% per annum from
24/07/2015 to till realisation of the total decreetal amount to
60 days from the date of this order.
3. Court fee be refunded to plaintiff in appropriate
proportion and as per the entitlement.
4. Decree be drawn up accordingly.
5. The Summary Suit No.824 of 2018 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 29.10.2021 Gr.Mumbai.
Dictated on: 29.10.2021
Typed on : 30.10.2021
Signed on : 08.11.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09.11.2021 AT 12.45 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
29/10/2021
Judgment/Order signed by P.O. on 08/11/2021
Judgment/Order uploaded on 09/11/2021
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