Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 748/21. 1 Ex-parte Judgment (Exh.33).
MHCC010050092018
Presented on : 17-04-2018
Registered on : 22-10-2018
Decided on : 30-04-2022
Duration : 4 years, 0 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 748 OF 2021
(OLD SUMMARY SUIT NO. 1221 OF 2018)
Exh.33.
Meghdoot Multilink Private Limited )
a Private Limited Company duly )
registered under the Companies Act, 1956 )
having tis registered address at )
27/29, Champa Galli, 3rd Floor, )
Zaveri Bazar, Mumbai 400 002 )
AND
Godown at Building No.I, Gala No.114 in )
RCC Building, Shree Rajlaxmi Complex, )
Kalher Village, Agra Road, )
Kelher Bhivandi, District Thane 421 302 )...Plaintiff
Versus
1. Dr. Shivraj Patharia, )
Proprietor of Shivam Hospital )
Shrenik Cooperative Housing Society )
Ltd., Plot No.106, Sector 2, Charkop, )
Kandivali (West), Mumbai 400 067 )
2. M/s. Phoenix Cardio Care India )
Private Limited, )
Regd Off: 53 Sayed Amir Ali Avenue, )
Shivam Chambers, Suite 3B, )
Kolkatta 700 019 )
AND
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Comm.Suit No. 748/21. 2 Ex-parte Judgment (Exh.33).
P456, Keyatala Road, Ground floor, )
Kolkata 700 029 )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 30th APRIL, 2022.
Shri J.K.Jadhav, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a private limited company engaged in
the business of distributors/consignee agents of Heart–Stents.
Defendant no.1 is a doctor by profession and he is the proprietor of
Shivam Hospital. Defendant no.2 is a company engaged in the
manufacturing, marketing and distribution of medical and surgical
devices including heartstents. Defendant no.2 had appointed as an
authorized distributor / consignee agent for the heartstents. Pursuant
to oral / email orders and instructions placed from time to time by
defendant no.1 with the plaintiff, the plaintiff sold and supplied heart
stents and winger product (stents) as per various invoices mentioned in
para 5 and 6 of the plaint, total worth Rs.5,76,000/. As defendant
no.1 failed to make payment, legal notice dated 10/11/2017 was issued
to defendant no.1, but he failed to make payment. Hence, the plaintiff
claimed the amount of Rs.4,31,000/, Rs.1,05,000/ and Rs.40,000/
(total Rs.5,76,000/) from defendant no.1 as per prayers clauses (a),
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Comm.Suit No. 748/21. 3 Ex-parte Judgment (Exh.33).
(b) and (c) with further interest at the rate of 24% p.a. from the date of
filing of the suit till the date of realization with costs of the suit.
3. The defendant no.1 is served with writ of summons as per
acknowledgment filed with affidavit of service dated 08/09/2019.
Advocate for defendant no.1 had filed vakalatnama on 21/12/2018. As
defendant no.1 failed to file written statement, without written
statement order is passed against him in roznama dated 27/09/2021.
Defendant no.2 was duly served with writ of summons by way of paper
publication as per affidavit of service (Exh.5) dated 23/08/2019, but he
failed to appear. Therefore, exparte order is passed against defendant
no.2 on 23/08/2019.
4. PW 1 Vipul Belose, Authorized Representative of the
plaintiff deposed on evidence affidavit (Exh.6) and proved documents
filed with list of documents (Exh.7). Proved documents are at Exh.8 to
31. The plaintiff closed evidence vide pursis (Exh.32). Heard learned
counsel Shri J.K.Jadhav for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.5,76,000/ from defendant no.1 ? If
yes, at what rate of interest ? In the Affirmative.
@ 12% p.a..
2. What order as to costs ? As per final order.
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Comm.Suit No. 748/21. 4 Ex-parte Judgment (Exh.33).
3. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 AND 2 :
6. PW 1 Vipul Belose has specifically stated that heartstents
were sold and supplied to defendant no.1 as per invoices filed with list
(Exh.7). He has stated that defendant no.1 has utilized heartstents and
he did not return a few stents due to which invoices are raised. He has
also placed on record delivery challans with list (Exh.7). Delivery
challans bear signature of representative of defendant no.1 with stamp
of the hospital. In short, sale and supply of goods is duly established
from documents on record. Defendant no.1 had two opportunities to
oppose claim of the plaintiff i.e. (i) after receipt of the notice (Exh.30)
and (ii) after receipt of writ of summons, but he failed to avail these
opportunities. Oral evidence of the plaintiff is duly supported by
documents maintained in due course. Evidence of the plaintiff is un
rebutted and it is also reliable. In short, claim of the plaintiff is proved
from oral as well as documentary evidence on record.
7. So far as interest rate is concerned, there is no reference
agreed rate of interest on any of invoices on record. Interest claimed by
the plaintiff is exorbitant and reasonable reduction is warranted.
Considering nature of transaction, further interest at the rate of 12%
p.a. would be just and proper. Costs of the suit is liable to be imposed
on defendant no.1. In the light of above discussion, I record my finding
as to point no.1 in the affirmative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 748/2021 is partly decreed.
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Comm.Suit No. 748/21. 5 Ex-parte Judgment (Exh.33).
2. Defendant no.1 is directed to pay amount of Rs.5,76,000/
(Rupees Five Lakhs Seventysix Thousand Only) to the
plaintiff with further interest @ 12% p.a. from the date of
the suit till the date of realization within three months from
the date of decree.
3. Defendant no.1 shall bear the costs of the suit.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 30/04/2022. Mumbai.
1. Dictated online on : 30/04/2022.
2. Signed on : 30/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/04/2022. 4.31 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 30/04/2022.
Judgment/Order signed by P.O. on 30/04/2022.
Judgment/Order uploaded on 30/04/2022.
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