Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Filed on :04.05.2019
Registered On :25.07.2019
Decided on :15.01.2022
Duration : Y-02/M-08/D-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 758 OF 2019
CNR NO.- MHCC01-004971-2019
Exhibit- 08
M/s. Chetana Book Depot
a partnership firm, (Now Known As Chetana
Publications (Indian) LLP,
having their office at 4th Floor,
B-Wing, Building- “E”, Trade Link Kamla City,
above Bombay Canteen
Lower Parel, Mumbai- 400 013.
... Plaintiff
V/s.
1. Holy Peace English School
Hollywood Colony, Kathora Road,
Amravati – 444 604.
2. Shailesh Amrute
C/o Holy Peace English School
Hollywood Colony, Kathora Road,
Amravati – 444 604.
... Defendants
Appearance:-
Ms.Madhuri Lakhani Advocate for the plaintiff.
Exparte against Defendants.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 15/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff are partnership firm registered under the Indian
Partnership Act, 1932. Defendant no.1 is a school and defendant no.2 is
the trustee of defendant no.1. Pursuant to defendants oral purchase
order for supply of educational books, plaintiff sold and delivered goods
as per defendants specifications which were received and acknowledged
by the defendants without any protest for quality and quantity till date.
The plaintiff in due course of business raised invoices and sold and
delivered goods to the defendants totally to the sum of Rs.1,98,301/-.
3. The Invoices for Rs.1,98,301/- to that effect has been raised
accordingly by the plaintiff. The defendants received the invoices as
well as goods covered there under. The defendants made part payment
of Rs. 50,000/- and returned the goods for an aggregate of
Rs.33,914/-. The amount of Rs.1,14,387/- remained to be paid
alongwith interest. The defendants neglected and failed to make
payment of said amount. Hence, the advocates letter dtd. 4.3.2019 was
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sent to the defendants. However, even after receipt of letter they
avoided to comply with the requisition thereof. The plaintiff averred
that the defendants are liable to pay the outstanding amount with
interest.
4. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are liable to
pay a sum of Rs.1,50,884/- with interest on the principal amount of
Rs.1,14,387/- at the rate of 18% p.a to the plaintiff from the date of suit
till its realization. Hence, this suit.
5. The suit summons were duly served on the defendants but
they failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
6. 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. Whether the plaintiff is entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,50,884/- with
interest
@ 18% per annum
on the principal sum.
2. What order and decree? As per final order.
REASONS
7. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
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Sr.
No.
Description of documents Exhibits
1 Office copy of Invoice No.
17/7504.01 dated 09.06.2017 for
Rs. 1,31,325/-
Exh.7/1
2 Offical Copy of notice dated
04.03.2019 from plaintiff’s
Advocate to defendant
Exh. 7/2
AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendants. Claim affidavit filed below Exh.06. The
documents produced on record by the plaintiff shows that the
defendants received the goods covered with the invoices below Exh.07.
The part payment of Rs.50,000/- is also made. Further, it reveals from
the record that the said transaction took place in the month of June-
2017 and the notice/letter of demand was issued to the defendants on
dtd.4.3.2019 and the suit is filed on 4.5.2019. As such, the plaintiff’s
claim in the suit is well within limitation.
9. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has supplied goods to the defendants
as per their instructions and the defendants failed to repay the balance
amount of Rs.1,14,387/-, though received the letter of demand from the
plaintiff. Said amount is not repaid either by the defendants. Therefore
defendants are liable to pay the outstanding amount of Rs.1,14,387/-
with interest to the plaintiff. According to the plaintiff the amount of
Rs.1,50,884/- is calculated by them as the outstanding amount by
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adding the interest at the rate of 18% p.a. In this background, I have
arrived at the conclusion that the plaintiff is entitled to recover sum of
Rs.1,50,884/- from the defendants.
10. According to the plaintiff the outstanding dues against the
defendants is Rs.1,50,884/- and said amount is calculated alongwith
interest at the rate of 18% p.a till the date of filing of the suit. So the
total outstanding amount is Rs.1,50,884/-. Apart from said amount
which is due against the defendant on the date of filing of the suit, the
plaintiff has claimed interest at the rate of 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 contract existing between the parties as to the rate of interest
which shall be levied. As per the agreed terms mentioned on the invoice
below Exh.07, defendants are liable to pay the interest at the rate of
18% p.a. Therefore, I hold, the rate of interest at the rate of 18% per
annum would be just and proper to be awarded on the principal sum
adjudged i.e. amount of Rs.1,14387/-. Hence, point no.1 is answered in
the affirmative.
AS TO POINT NO.2:
11. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,50,884/- from the
defendants with interest at the rate of 18% per annum on the principal
sum of Rs.1,14,387/- from the date of filing of the suit till its
realization. Plaintiff is also entitled to recover cost of the suit from the
defendants. Hence, in answer to point no.2, I proceed to pass the
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following order:
ORDER
1. The defendants shall pay Rs.1,50,884/- (Rs. One Lakh
Fifty Thousand Eight Hundred Eighty Four only) to the
plaintiff, with interest at the rate of 18% per annum
on the principal sum of Rs.1,14,387/- from the date of
filing of the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date : 15/01/2022 Gr. Bombay
Dictated on : 15/01/2022
Typed on : 15.1.2022
Signed on : 18.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/01/2022 02.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
15.1.2022
JUDGMENT/ORDER signed by
P.O.on
18.1.2022
JUDGMENT/ORDER uploaded on 18.1.2022
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