Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010049732019
Filed on :04-05-2019
Registered On :19-06-2019
Decided on :9.02.2022
Duration : Y-02/M-09/D-07
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 626 OF 2019
Exhibit- 9
CNR NO.- MHCC010049732019
Shri Aman Jabarmal Chopra
Age :27 years Occ: Business
On behalf of his Proprietary Concern:
“Aman Creation”,
a. Having his place of business at
Shop no. 17, Ground Floor,
Angadiya Chowk, 15/17 , Ladwadi,
Old Hanuman Lane , Kalbadevi,
Mumbai- 400 002.
b. Residing at
701, Building 25/B, Ashok Nagar,
Kalyan Road, Bhiwandi,
Dist: Thane – 421 302. ... Plaintiff
V/s.
Smt. Manisha Bharat Rathod
Age : Adult, Occ: Business,
On behlaf of her Proprietary concern:
“M/s. Colours Creation”
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a. Having place of business at
Room No.8, 1st Floor,
Jaymahal, Opp. Piramal Chambers,
Income Tax Office, Lal Baug,
Mumbai-400 012. ... Defendant
Appearance:-
Mr. Shashikant Rathi Advocate for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 09/2/2022
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 defendant.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The plaintiff is a businessman engaged in business of Sale
of Garments, to be specific “ Kurtis” Retail Supplier. The defendant is
engaged in the business of Sale of “ Kurti” in Retail Market in the name
and style of “Colours Creation” . The transactions took place in between
them in due course. By 22.10.2018, the total amount payable by the
defendant against the garments sold to her stood at Rs.2,07,382/-.
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Defendant assured for repayment and issued two cheques at different
times for pool payment. Cheque dt. 1.11.2018 bearing no. 335953 was
for Rs.34,000/- and the cheque dtd. 10.11.2018 bearing no. 335954
was for Rs.20,000/-. Both cheques got dishonored for insufficiency of
funds in defendant’s bank account.
3. The plaintiff issued letter/notice through advocate on
26.12.2018 to the defendant calling upon him to pay the amount of
Rs.2,07,382/- alongwith accrued interest but the defendant failed to
comply with said requisition. Lateron the defendant acknowledged her
liability and sent her son at plaintiff's business place on dtd.30.1.2019
to return some goods sold to defendant amounting of Rs.20,388/- and
assured for remaining repayment. The outstanding dues remained
Rs.1,86,994/- . However, defendant miserably failed to make payment
of said outstanding dues which come to Rs.2,10,841/-. The plaintiff
averred that the defendant is liable to pay the outstanding amount of
Rs.2,10,841/- with further interest.
3. Thus, the plaintiff has filed the present suit against the
defendant for recovery. It is averred that the defendant is liable to pay a
sum of Rs.2,10,841/- to the plaintiff and further interest at the rate of
24% p.a on the principal amount from the date of suit till its realization.
Hence, this suit.
4. The suit summons were duly served on the defendant but
she failed to appear and contest the suit. Hence, suit is posted for
judgment as per order XXXVII Rule 2(3) of Code of Civil Procedure
1908 judgment.
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5. 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 entitled for
recovery of amount against the
defendant ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.2,10,841/- with
interest
@ 24% per annum
on the principal
amount
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.03 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Cheque bearing No. 284913
dtd.15.06.2018 and original
cheque return memo.
Exh. 4 Colly
2 Original triplicate of the invoice
bearing invoice no.82,133 and
111.
Exh. 5 Colly
3 Original triplicate of the invoice
bearing invoice no.154
Exh. 6
4 Cheque bearing no. 335953 dtd.
1.11.2018, Original cheque return
memo dtd.3.11.2018, Cheque
bearing no. 335954 dtd.
10.11.2018, Original cheque return
memo dtd. 15.11.2018
Exh. 7 colly
5 Office copy of the legal notice sent
by advocate dtd. 26.12.2018 and
Exh.8 Colly
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Sr.
No.
Description of documents Exhibits
RPAD Envelop bearing the postal
endorsement “ Intimation on
28.12.2018” which was served
unserved upon defendant.
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendant. The documents produced on record by the plaintiff shows
that the defendant incurred liability for payment against goods sold to
her by plaintiff as per the invoices so raised and issued the 2 cheques to
the plaintiff for the amount of Rs.34,000/- and Rs,20,000/- respectively.
Said cheques came to be dishonored for insufficiency of funds. The
outstanding due is Rs.1,86,994/- and said amount is not paid by the
defendant to the plaintiff. Further, it reveals from the record that said
transaction for issuance of cheque took place on dtd. 01.11.2018 and
10.11.2018, the notice/letter of demand was issued to the defendant on
dtd.26.12.2018 goods worth of Rs.20,380/- returned on dtd. 30.1.2019
and the suit is filed on 04.05.2019. As such, the plaintiff’s claim in the
suit is well within limitation.
8. All the documents produced by the plaintiff at list Exhibit-
03 goes to establish that the defendant is under the liability to pay
outstanding amount of Rs.1,86,994/- to the plaintiff and the cheques
issued for part payment got dishonored. The legal liability is not
discharged by the defendant. Therefore, the plaintiff is claiming
Rs.2,10,841/- which is the amount calculated with interest at the rate of
24% p.m from the date of dishonor of cheque till the filing of suit. Said
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amount is not repaid by the defendant. Therefore, the defendant is
liable to pay the outstanding amount of Rs.2,10,841/- to the plaintiff. In
this background, I have arrived at the conclusion that the plaintiff is
entitled to recover sum of Rs.2,10,841/- from the defendant.
9. According to the plaintiff the outstanding dues against the
defendant is Rs.2,10,841/- and said amount is calculated alongwith
with interest at the rate of 24% p.m from the of dishonor of cheque till
the filing of suit. Apart from said amount which is due against the
defendant on the date of filing of the suit, the plaintiff has claimed
further interest at the rate of 24% per annum on the principal amount.
The defendant neither appeared nor contested the suit. There is nothing
on record to show that the said translations between the parties was not
the commercial transactions. The invoices shows that agreed rate of
interest is 24% p.a. Therefore, I hold the plaintiff is entitled to recover
the principal amount alongwith interest at the rate of 24% p.a. till
realization of the amount. Therefore, I hold, the rate of interest at the
rate of 24% per annum would be just and proper to be awarded on the
principal sum of Rs.1,86,994/-. Hence, point no.1 is answer in the
affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.2,10,841/- from the defendant
with interest at the rate of 24% per annum on the principal sum of
Rs.1,86,994/- 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 answer to point no.2, I proceed to pass the following order.
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ORDER
1. The defendant shall pay Rs.2,10,841/-(Rs. Two Lacs
Ten Thousand Eight Hundred Forty one Only) to the
plaintiff, with interest at the rate of 24% per annum
on the principal sum of Rs.1,86,994/- from the date of
filing of the suit till its realization.
2. The defendant 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 :09/02/2022 Gr. Bombay
Dictated on : 09..02.2022
Typed on : 09..02.2022
Signed on : 09..02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/02/2022 4.00p .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
09/02/2022
JUDGMENT/ORDER signed by
P.O.on
09/02/2022
JUDGMENT/ORDER uploaded on 09/02/2022
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