Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in SU-1314-2019
IN THE CITY CIVIL COURT AT MUMBAI.
SUIT NO.1314 OF 2019.
(CNR No.MHCC01-004843-2019)
Haresh Advani }
Proprietor of Basant Enterprises }
having their office at 84/86, }
Nagdevi Cross Lane, 2nd floor, }
Mumbai-400 003. }...PLAINTIFF.
Versus
Amitabh Rolling Equipment's Pvt. Ltd.}
having its office at 2nd floor, }
Jayant Patil Niwas, }
Opp Purshotam Plaza, Kasarvadavali }
G.B. Road, Thane(W) 400 615 and }
also this address 2/404, Vijay Park, }
Kasarvadavali, G.B.Road, }
Thane (W) 400 615 through }
its directors Ravindra Anand Bansode}
and Smita Ravindra Bansode }...DEFENDANTS.
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Adv.Jay Yadav, learned advocate for the plaintiff.
Suit proceeded
ex-parte against the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L J U D G M E N T
(Delivered on 07/12/2021)
1. This is a suit for recovery of amount of Rs.1,44,287/-.
2. In brief, case of plaintiff may be stated as under;
Plaintiff is running business of Stockist & OEM Supplier of
all types of Ball & Rollers bearing under name and style of ‘Basant
Enterprises’. Plaintiff has sold and delivered goods to defendant in due
course of business by raising invoices bearing No.8104 dtd.04/4/2017
for Rs.47,472, No.8105 dtd.04/04/2017 for Rs.1,25,700/- and No.8119
dtd.20/04/2017 for Rs.2,645/- on the terms and conditions mentioned
therein for payment to be made immediately and in case of failure,
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plaintiff shall be entitled for interest at the rate of Rs.21% p.a. on the
outstanding amount.
3. Plaintiff has received Rs.75,000/- on 16/06/2017 through
NEFT towards part payment of total amount of Rs.1,75,867/-. Despite
repeated demands, defendant failed to pay the balance amount of
Rs.1,00,867/-. Defendant has issued cheque No.442322 dt.10/10/2017
of said amount drawn on Syndicate Bank in favour of the plaintiff.
Plaintiff had presented said cheque for encashment but it has been
dishonoured vide cheque returning memo dtd.04/01/2018. Plaintiff
had sent notices dtd.16/01/2018 to the defendant for calling upon to
pay the cheque amount but despite service of the notices, defendant
failed to make payment of the outstanding amount hence, plaintiff has
filed a complaint under Section 138 of N.I. Act against the defendant in
the court of learned Metropolitan Magistrate which is pending. An
amount of Rs.1,44,287/- is outstanding against the defendant with
interest upto 22/04/2019.
On these grounds, plaintiff has prayed to direct the
defendant to pay him Rs.1,44,287/- with future interest @ Rs.21% p.a.
on the principal amount of Rs.1,00,867/- from the date of fling of the
suit till realization.
4. Despite service of writ of summons, defendant failed to
appear hence, suit proceeded
ex-parte against the defendant.
5. Following points arose for my consideration. I answered
those points for the reasons stated thereunder;
ISSUES FINDINGS
1)Whether the plaintiff proved that an
amount of Rs.1,00,867/- is outstanding
against the defendant, as alleged? ...Yes.
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2)Whether the plaintiff further proved that
cheque of the said amount issued by the
defendant is dishonored and despite
intimation about it, defendant has not paid
the cheque amount to the plaintiff? ...Yes.
3)Whether the plaintiff is entitled to recover
amount as claimed from the defendant? ...Yes.
4)Whether plaintiff is entitled for future
interest @ Rs.21% on the principal amount?
...No, entitled for future
interest @ Rs.9%.
5)What order and decree? ...As per final order.
REASONS
AS TO POINT Nos.(1) TO (4):
6. All the points are taken together for consideration. In
support of his claim, plaintiff has examined himself only as PW-1
Haresh by filing his affidavit in lieu of examination-in-chief at Exh.2.
Besides it, plaintiff has produced delivery challans at Exh.4, 5 & 6, Tax
Invoice at Exh.7, 8 & 9, original cheque dtd.10/10/2017 at Exh.10,
cheque returning memo at Art.-3, two office copies of notices
dtd.16/01/2018 at Exh.11 & 12, two RPAD receipts at Exh.13 & 14,
Track Consignments at Art.-P/1 & P/2 and Particulars of the Claim at
Art.-P/3. I have heard learned Shri.Jay Yadav for the plaintiff.
7. PW-1 Haresh has reiterated most of the contents of plaint
Exh.1 in his affidavit in lieu of examination-in-chief. His evidence that
he sold goods to the defendant and defendant received the goods is
supported by the delivery challans at Exh.4 to 6 and Tax Invoices at
Exh.7 to 9. PW-1 Haresh deposed that out of the total cost of
Rs.1,75,867/-, defendant has made part payment of Rs.75,000/- only
on 16/06/2017 through NEFT and an amount of Rs.1,00,867/- is still
outstanding against the defendant. He stated that defendant has issued
cheque No.442322 dtd.10/10/2017 towards repayment of said amount
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but when said cheque was presented for encashment, it has been
returned back ‘unpaid’ hence, he had sent notice dtd.16/01/2018 to the
defendant by speed post but despite service of the notices, defendant
has not paid the cheque amount. His said evidence is supported by the
original cheque Exh.10, office copies of notices Exh.11 & 12 and postal
receipts at Exh.13 & 14.
8. Evidence of PW-1 Haresh has gone on record unchallenged
as defendant failed to appear and contest the suit hence, there is no
reason to disbelieve his evidence. Thus, evidence of PW-1 Haresh is
sufficient for accepting that defendant has purchased goods worth
Rs.1,75,867/- from the plaintiff out of which, he made part payment of
Rs.75,000/- only and an amount of Rs.1,00,867/- is still outstanding
against the defendant. Since the cheque issued by the defendant has
been dishonored, plaintiff is entitled to recover the amount of said
cheque from the defendant.
9. PW-1 Haresh deposed that it was agreed that interest at the
rate of Rs.21% annum shall be charged in case of failure of the
defendant to make payment within the prescribed period and it is
mentioned so on the Tax Invoices. By calculating interest at that rate
from the date of the delivery of goods till date of filing of suit, plaintiff
has prayed that defendant be directed to pay him a sum of
Rs.1,44,287/- alongwith interest at 21% p.a. on the principal amount
from the date of filing of the suit till its complete realization. It is
mentioned on the Tax Invoices that the payment if is not made as
specified, the payment will be accepted afterwards with interest at the
rate of Rs.21% p.a.. Payment term, as can be seen from the contents of
Tax Invoices, was immediate. Having regards to it, there is no reason for
not accepting the claim of the plaintiff for recovery of Rs.1,44,287/-
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which is inclusive of interest @Rs.21% per annum till the date of filing
of the suit. So far the future interest is concerned, this court is of the
opinion that it would be just to award interest @ Rs.9% p.a. to the
plaintiff on the principal amount of Rs.1,00,867/- from the date of filing
of the suit till complete realization of the decreetal amount.
For all these reasons, by answering Point Nos.(1) to (4)
accordingly, I pass the following order.
O R D E R
Suit is partly decreed with costs.
Defendant shall pay an amount of Rs.1,44,287/- to the
plaintiff with future interest @ Rs.9% p.a. on the principal
amount of Rs.1,00,867/- from the date of filing of the suit till
complete realization of the decretal amount.
A decree be drawn up accordingly.
Date : 07/12/2021 (P.P.RAJVAIDYA)
Dictated on :07/12/2021. Judge, C.R.No.62,
Checked on : 09/12/2021. City Civil Court,
Signed on : 09/12/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
13/12/2021 at 11.15 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 07/12/2021
Order signed by P.O. on 09/12/2021
Order uploaded on 13/12/2021
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