Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Sum Suit No. 1048/2018
MHCC010046242018
Presented on : 06-04-2018
Registered on : 19-09-2018
Decided on : 05-02-2021
Duration : 2 years, 10 months, 00 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 1048 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
M/s. Rockdude Impex Pvt.Ltd.,
Having its corporate office at
E-12, 6th Floor, Everest Bldg.,
156, Tardeo Road, Opp. Tardeo Depot,
Mumbai 400 034 through its Authorized
signatory Mrs. Vandana Prabhu ...Plaintiff
Versus
M/s. Angel Enterprises,
Having its office at:
Mattamel Junction, Konthuruthy Road,
Thevara, Kochi 682 013
Rider No. 1
Mr. Verghese Anthony @ Subhash
Melaparambil, the authorized signatory
of M/s Angel Enterprises SJNRA-22,
St. Judge Road, Thevara, Kochi-482013,
State Kerla ...Defendant.
Appearances:-
Ld.Advocate Ramdas Hake Patil for the Plaintiff.
None for the defendant.
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 05th FEBRUARY, 2021
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J U D G M E N T
1. This is Summary Suit under Order XXXVII of the Code of
Civil Procedure, 1908, for the recovery of amount of Rs. 13,60,899/-
(Rupees Thirteen Lakhs Sixty Thousand Eight Hundred Ninety Nine
only) with pendente lite and future interest at the rate of 18% p.a.
compounded monthly on the principal amount of Rs. 9,71,768/-.
2. According to the Plaintiff, it is a company engaged in the
business of manufacturing and supplying of Aluminium Foils, PVC Cling
Film, Semi-Rigid Roil Containers, etc. The defendant is a proprietor
company owned by Subhash Sharma. By letter dated 16.11.2015, the
defendant was appointed as authorized super stockist for the entire
range of plaintiff’s “Freshee” products for its Aluminium Foils, PVC
Cling Film, etc. The defendant was to operate in the areas of Kerala. It
was agreed between the parties that dispatch of the goods by the
plaintiff would be against advanced payment by the defendant. The
defendant was to provide form ‘C’ to the plaintiff every quarter without
fail. In purusance of the letter dated 16.11.2015, the transactions
started between the parties. The defendant used to make advance
payment to the plaintiff and the plaintiff used to supply the products to
the defendant thereupon. However, sometimes, the defendant used to
make payment after the products were supplied to it and sometimes on
defecient payment, the plaintiff used to supply the products and later on
the defendant used to make deficient payment. The plaintiff possessed
all the vouchers and the tax invoices for the product supplied to the
defendant. The plaintiff also maintained the ledger in respect of the
transaction. As per the ledger for the period from 01.04.2015 to
31.07.2016, the closing balance which is due and payable by the
defendant to the plaintiff is Rs.10,34,243/-. The said amount was due
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against the invoice No. D-160183 dated 18.05.2016. The plaintiff
issued several letters and e-mails to the defendant demanding the said
amount, but the defendant did not pay the amount. However, vide
letter dated 20.09.2016, the defendant forwarded its ledger for the
period from 01.04.2015 to 22.11.2016. As per the said ledger, the
defendant admitted that amount of Rs.6,71,968.74/- is due from him to
the plaintiff. According to the plaintiff, the amount of Rs.2,93,926/- is
missing in the ledger prepared by the defendant. The plaintiff had
dispatched the products i.e. Aluminium Foils to the defendant on
01.03.2016, for the amount of Rs. 2,93,926/- vide invoice No.DTA-
11/15-16/675 dated 29.02.2016 and Tax Invoice dated 29.06.2016.
The defendant received the said product on 16.03.2016. The plaintiff
intimated about the missing entry to the defendant. On reconciliation
of due amounts, the amount of Rs.9,71,768/- is due from the defendant
to the paintiff. The defendant is liable to pay interest at the rate of 18%
per annum compounded monthly over and above the principal amount
from 18.05.2016. The plaintiff issued several letters to the defendant to
make payment, however, the defendant failed to make payment.
Therefore, the plaintiff claimed recovery of total amount of Rs.
13,60,899/- including the amount towards past interest @ 18% per
annum compounded monthly on the principal amount of Rs.9,71,768/-,
with further pendente lite and future interest at the same rate. Hence,
this suit.
3. Despite service of summons, the defendant failed to appear.
Therefore, the suit proceeded exparte against the defendant.
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4. Considering the material on record and submissions made
on behalf of the plaintiff, points arise for determination along with my
findings thereon for the reasons recorded are as under:-
Sr.No. POINTS FINDINGS
1. To what amount the plaintiff is entitled ? Rs.9,71,768/-
2. At what rate of interest? 12% p.a.
3. What order & decree? As per final order
REASONS
AS TO POINTS NOs.1 to 3 :-
5. The plaintiff examined its director and authorized signatory
viz., Vandana Prabhu at Exh.7. The plaintiff also produced documents
with list Exh.8. The testimony of Vandana speaks that vide letter dated
16.11.2015, the defendant was appointed as a super stockist for the
entire region of Kerala belt. The transaction between them started
accordingly. The defendant was to make advance payment for the
goods supplied by the plaintiff. However, sometimes, the defendant had
made payment after the products supplied to it and on deficient
payment the plaintiff supplied products to the defendant, later the
defendant used to make the balance payment. The plaintiff possesses
all the vouchers and tax invoices for the products supplied to the
defendant. The plaintiff maintained ledger amount in respect of the
transaction between the parties. As per the ledger amount for the
period 01.04.2015 to 31.07.2016, the amount of Rs.10,34,243/-
towards invoice No.D-160183 dated 18.05.2016, was due and payable
by the defendant. The testimony of Vandana speaks of the letter issued
by the plaintiff to the defendant demanding the said amount. Her
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testimony further speaks that, the defendant vide letter dated
30.11.2016, issued his ledger account for the period 01.04.2015 to
22.11.2016, wherein the defendant admitted that the amount of
Rs.6,71,968/- is due and payable. However, the entry in respect of the
amount of Rs. 2,93,926/- about the invoice dated 29.02.2016 was
missing in the said ledger. The plaintiff intimated about it to the
defendant and issued reconciled statement, the plaintiff demanded the
due amount of Rs.9,71,768/- by issuing letter as well as legal notice
however, the defendant failed to pay the amount.
6. The testimony of PW-1 Vandana is unchallenged there
being no cross-examination to it, same has to be accepted and relied on.
Further, the documents below list Exh.8, show that the plaintiff vide
letter dated 16.11.2015, appointed the defendant as its
“Freshee”stockists. The copy of ledger shows amount of Rs.10,34,243/-
is due and payable by the defendant towards the invoice dated
18.05.2016 bearing NO. D-160183. Several letters including e-mail
were issued by the plaintiff to the defendant demanding the said
amount. However, vide an envelope addressed to the plaintiff, the
defendant issued ledger in respect of period 01.04.2016 to 22.11.2016,
admitting therein that an amount of Rs. 6,71,968.74/- is due and
payable by him. It also reveals that thereupon the plaintiff intimated
about the missing entry in respect of the invoice dated 29.02.2016 of
about Rs.2,93,662.50/- to the defendant and issued reconciled
statement of account dated 12.12.2016 for the total amount of
Rs.9,71,768/-. Despite issuance of letters and notice demanding the
said amount, the defendant failed to make payment. Thus, keeping in
view the unchallenged testimony of the plaintiff corroborated by the
documents on record, it is proved that the defendant is liable to pay the
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amount of Rs.9,71,768/- to the plaintiff. Therefore, the plaintiff is
entitled to recovery of the same amount. As regards the interest, the
plaintiff claimed certain amount towards the past interest at the rate of
18% per annum compounded monthly over and above the principal
amount. The plaintiff has also claimed pendente lite and future interest
at the same rate. However, there is no material to show that the parties
agreed for the interest at the rate of 18% per annum compounded
monthly rest. The letter dated 16.11.2015, does not contain any such
term. In these circumstances, the plaintiff is not entitled to the
compoundable interest at the rate of 18% per annum. Considering the
over-all circumstances, it is just and proper to grant simple interest at
the rate of 12% p.a. from the due date 18.05.2016 till the payment.
Hence, points No.1 and 2 are answered as that the plaintiff is entitled to
recovery of the amount of Rs. 9,71,768/- with simple interest at the rate
of 12% p.a. from 18.05.2016, till realisation of the amount. In answer
to point No.3, order as follows is passed:-
ORDER
1. The suit is exparte decreed with costs as under.
2. The defendant shall pay to the plaintiff the amount of
Rs.9,71,768/- (Rupees Nine Lakhs Seventy One Thousand Seven
Hundred Sixty Eight Only) with simple interest at the rate of 12% p.a.
from 18.05.2016 till realization of the amount.
3. Decree be drawn up accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 05.02.2021 City Civil Court, Gr. Mumbai
Dictated on : 05.02.2021
Transcribed on : 06.02.2021
Signed on : 08.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 09.02.2021 10.30 a.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
05.02.2021
JUDGMENT /ORDER signed by P.O. on 08.02.2021
JUDGMENT /ORDER uploaded on 09.02.2021
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