Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010050502020
Filed on :09.11.2020
Registered On : 06.01.2021
Decided on :05.02.2022
Duration : Y-01/M-02/D-27
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 24 OF 2021
IN
Exhibit-08
CNR No:-MHCC01-005050-2020
Messrs. Krishna Metal Corporation
through its Proprietor,
Mr. Kapuraram M. Rajpurohit , having office
At 119/123 Vyas Sadan, Ground Floor,
Shop No.4, Dr. M.G. Mahimtura Marg,
3rd Kumbharwada Lane,
Mumbai- 400 004.
...Plaintiff
V/s.
1 Govindrajulu Muralidharan
Proprietor of Messrs.
Shri. Vijyalaxmi Industries
having its office at old No. 54
New No. 26A, Sowripalayam Road, Opp.
Sujani Mill, Coimbatore-641 028, T.N.
2. Jaya Vijayalaxmi Industries
Signatories of Messrs.
Shri. Vijyalaxmi Industries
having its office at old No. 54
New No. 26A, Sowripalayam Road, Opp.
Sujani Mill, Coimbatore-641 028, T.N. ... Defendants
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Summ. Suit No.24/2021
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Appearance:-
Mrs.Hasmita D. Kapadia Advocate for the plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 05.02.2022
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 Proprietor of Messrs. Krishna Metal Corporation
and doing business of Ferrous and None Ferrous metals. Defendant
no.1 is proprietor and Defendant no.2 is an authorized signatories of
Messrs Shri. Vijyalaxmi Industries. Pursuant to defendant’s purchase
orders for supply of various goods of metals which are described in
detail in the suit, plaintiff sold and delivered goods as per defendant’s
specifications through transporter Sri. Balaji Roadlines (Regd.), with
delivery challans, 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 defendant totally to the sum of Rs.83,759/-.
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Summ. Suit No.24/2021
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3. The defendant issued two cheques for discharging legal
liability to pay the sum against the invoices but the same got dishonored
on presentation in bank for the reason of “ funds insufficient” . The
statutory notice u/s. 138 of N.I.Act has been given by the plaintiff
advocate to the defendant on dd. 13.3.2018. But inspite of giving
assurance, the defendant failed to make the payment of outstanding
dues. The final notice though advocate came to be issued to the
defendant on dtd.18.9.2019 for payment admitted liability of
outstanding dues of Rs.83,759/- together with interest at the rate of
24% p.a . The defendants failed to remit the balance outstanding dues
even after receipt of notice. 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.1,40,715/- with interest on the principal amount of
Rs.83,759/- at the rate of 24% 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
Amount of
Rs.1,40,715/-with
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defendants ?
A] If yes, what would be the rate
of interest?
interest
@ 24% 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:
Sr.
No.
Description of documents Exhibits
1 Copy of purchase order dated
19.09.2017,12.02.017, 24.11.2017
Exh.7/1
2 Copy of defendants Email dated
19.9.2017,12.7.2107, 24.11.2017
Exh. 7/2
3 Certificate under section 65B of
Indian Evidence Act.
Exh. 7/3
4 Copy of Tax invoice No. 042/2017-
18 dtd. 29.9.2017, 056/17-
18/2017-18 dated 24.10.2017 and
073/17-18/2017-18 dated
27/11/2017.
Exh. 7/4
5 L.R.No.3828487,3760244,
3762853.
Exh. 7/5
6 Delivery Challan No. 042/17-18
dated 29/10/2017. 056/17-18 -
and dated 24.10.2017
Exh. 7/6
7 Copy of ledger statement of
plaintiff
Exh. 7/7
8 Original Cheque dated 13.12.2017
for Rs.15,554/-
Exh. 7/8
9. Original Cheque dated 28.12.2017
fo Rs.68,205/-
Exh. 7/9
10 Original Dishonor memo dated
15.02.2018
Exh. 7/10
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Summ. Suit No.24/2021
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Sr.
No.
Description of documents Exhibits
11 Original Dishonor memo dated
15.2.2019
Exh. 7/11
12 Record copy of plaintiff’s notice
through its advocate dated
13.3.2018 addressed to the
defendants alongwith
acknowledgment.
Exh. 7/12
13 Record copy of plaintiff’s final
notice through its advocate dated
18.9.2019 alongwith
acknowledgment.
Exh. 7/13
AS TO POINT NO.1:
8. This is a summary suit which is not contested by the
defendant. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendant. Claim affidavit filed below Exh.06. The
documents produced on record by the plaintiff shows that the
defendant received the goods covered with the invoices below Exh.07.
Further, it reveals from the record that the said transaction took place
from the month of September -2017 to November -2017 and the notice/
letter of demand was issued to the defendant on dtd.18.9.2019 and the
suit is filed on 9.11.2020. 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.83,759/-, though received the letter of demand from the
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plaintiff. Said amount is not repaid by the defendants. Therefore,
defendants are liable to pay the outstanding amount of Rs.83,759/-
with interest to the plaintiff. According to the plaintiff the amount of
Rs.1,40,715/- is calculated by them as the outstanding amount by
adding the interest at the rate of 24% p.a. and other charges. In this
background, I have arrived at the conclusion that the plaintiff is entitled
to recover sum of Rs.1,40,715/- from the defendants.
10. According to the plaintiff the outstanding dues against the
defendants are Rs.1,40,715/- and said amount is calculated alongwith
interest at the rate of 24% p.a and charges till the date of filing of the
suit. The interest rate is endorsed on the invoices issued by the plaintiff.
So the total outstanding amount is Rs.1,40,715/-. Apart from said
amount which is due against the defendants on the date of filing of the
suit, the plaintiff has claimed interest at the rate of 24% 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
24% p.a. 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
adjudged i.e. amount of Rs.83,759/-. Hence, point no.1 is answered in
the affirmative.
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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.1,40,715/- from the
defendants with interest at the rate of 24% per annum on the principal
sum of Rs.83,759/- 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 following order:
ORDER
1. The defendants shall pay Rs.1,40,715/- (Rs. On Lac
Forty Thousand Seven Hundred Fifteen only) to the
plaintiff, with interest at the rate of 24% per annum
on the principal sum of Rs.83,759/- 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 :05/02/2022 Gr. Bombay
Dictated on : 05/02/2022
Typed on : 05/02/2022
Signed on : 05/02/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/02/2022 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
05/02/2022
JUDGMENT/ORDER signed by
P.O.on
05/02/2022
JUDGMENT/ORDER uploaded on 05/02/2022
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