Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Suit
No.391 of 2021. Exh. 18
MHCC010052762018
Presented on : 19042018
Registered on : 13062018
Decided on : 15022023
Duration : 4 Y, 9 M, 26 D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.391 OF 2021.
Exh. 18.
Rohit & Company. ]
A Partnership Firm duly registered under ]
the provisions of Indian Partnership Act 1932 ]
Having its office at ]
B2,1003, Marathon Inova, ]
Near Peninsula Corporate park, ]
Lower Parel West, Mumbai 400 013. ]
Through Constituted Attorney. ]
Arun Mahabir Pansari, Aged 54 years. ]
Vs.
1.Ratan Industries ]
A Proprietary firm, ]
2. Vishnu Mane, ]
Full Name not Known, ]
Age: Adult, ]
Proprietor/Owner of Defendant No.1. ]
3. Amit Deokate. ]
Full Name not known. ]
Age Adult, ]
Authorized person of Defendant No.1 ]
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Judgment in Suit
No.391 of 2021. Exh. 18
All the above are having Office address ]
At : A/P, Junction, Post Lasurne, TalIndapur, ]
Dist Pune 413 117. ]….Defendants.
Appearance:
Adv.Achal Jain i/b Law Chamber of Siddharth Murarka, for the plaintiff
Defendant – Exparte.
SUIT FOR RECOVERY OF MONEY
Coram : Shri. S. B. Pawar.
Judge.
CR No. : 59.
Date :15th February, 2023.
ORAL JUDGMENT
This is a suit for recovery of an amount of Rs.21,60,729/
with interest at the rate of 36% p.a. on Rs.14,80,340/ from the date of
the suit.
Brief facts of the plaintiff's case are as under :
2. Plaintiff is a partnership firm and is in the business of
trading of iron and steel products. Defendant No.1 is a proprietor firm.
Defendant No.2 is the its proprietor and defendant No.3 is the
authorized person of defendant No.1.
3. The plaintiff has sold, supplied and delivered various goods
under six invoices and the sum of Rs. 14,80,340/ is outstanding against
the said invoices. As per the terms and conditions of the invoices after
credit period of 45 days, the defendants were bound to pay interest at
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Judgment in Suit
No.391 of 2021. Exh. 18
the rate of 36% p.a. and an amount of Rs.6,80,389/ is due towards
interest till 31.03.2011. Defendants neglected to repay the outstanding
an amount. The defendant has issued checked for Rs.14,80,300/
towards repayment but the same is dishonored for reason 'fund
insufficient'. Therefore, plaintiff issued notice dated 05.01.2017 calling
upon the defendant to repay outstanding amount. Defendant failed to
comply the notice. Therefore, the suit is filed for the recovery of an
amount.
4. Defendants are duly served with writ of summons but they
failed to appear in the suit. Therefore, the suit proceeded exparte
against the defendants.
5. Following points arise for my determination to which
findings have been recorded for the reasons discussed below.:
Sr. No. Points Findings
1 Whether plaintiff proves that an
amount of Rs.21,60,729/ is
due and payable by the
defendants to the plaintiff?
..Yes..
2. Whether plaintiff is entitled for
interest on above amount? If
yes, at what rate?
..Yes...
Interest @ 18 % p.a.
3. What order and decree? Suit is partly decreed.
R E A S O N S
As to Point Nos. 1 to 3:
6. Heard argument of Ld. advocate for the plaintiff. Read
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written arguments at Exh.16. In order to prove the suit claim Mr. Arun
Pansare filed his evidence affidavit as PW 1 at Exh. 6 on the basis of
Power of Attorney dated 26.06.2015 in his favour. He has reiterated
the suit claim in terms pleaded in the plaint. Documents tendered in
evidence are duly proved in his evidence.
7. Exh. 19 is the Extract of Register of Firm under Partnership
Act under Partnership Act and Partnership Deed dated 01.04.2001.
These documents reflects that the plaintiff firm is duly registered under
Partnership Act. Therefore, the suit at the instance of plaintiff's firm is
maintainable.
8. The plaintiff relied upon one tax invoice dated 25.01.2016
and five tax invoices dated 06.03.2016 which are at Exh. 9(colly) along
with corresponds First Stage Dealer's Tax Invoices. These documents
shows that the goods described in the tax invoice are sold out to
defendant No.1. The copy of cheque dated 20.12.2016 at Exh.10
alongwith cheque return memo further show that it was issued by
defendant Nos.1 and 2 for Rs.14,80,000/ to the plaintiff and the same
is returned as unpaid for the reason 'funds insufficient'. The above
documents are sufficient to establish the outstanding liability of
Rs.14,80,340/ against goods delivered by plaintiff to the defendant
No.1.
9. The tax invoices provides condition as interest will be
charged at 36%p.a. if payment is received after due date and as per
payment terms the amount was to be paid within 45 days. Accordingly,
plaintiff has calculated interest at the rate of 36% p.a. till 31.03.2018
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and has inclined the same amount in the suit claim.
10. During the pendency of the suit pursis at Exh. 15 is filed on
behalf of the plaintiff whereby the plaintiff is intimated that defendants
have made payment of Rs. 4,50,000/during the pendency of the suit.
Therefore, an amount of Rs.10,30,340/ towards principal is
outstanding from the defendants against the goods sold by the plaintiff.
11. Advocate for plaintiff during his oral argument as well as in
the written notes of arguments at Exh. 16 has submitted by relying
upon the judgment of Hon'ble Supreme Court in M/s. TVC Skyshop Ltd
V/s. M/s. Reliance Communication and infrastructure Ltd ., (SLP
(C) No. 13099 of 2008) and Judgment of Hon'ble Bombay High Court
in Dongreen Resins Chemicals Private Limited V/s. Balaji Fiber
Feiinforce Pvt. Ltd. in Suit No. 1378 of 2012 that the plaintiff is
entitled to receive interest as per the condition in the tax invoice.
12. I have gone through the above authorities. In the
Judgment of Hon'ble Supreme Court in M/s. TVC Skyshop Ltd V/s.
M/s. Reliance Communication and infrastructure Ltd.,(supra), there
is reference to agreement between the parties and the interest was
charged as per the terms of the agreement. In the judgment in
Dongreen Resins Chemicals Private Limited V/s. Balaji Fiber
Feiinforce Pvt. Ltd. in Suit No. 1378 of 2012 (supra) the Hon'ble
Supreme Court has observed that purchase order along with invoices
and delivery challan constitute a written contract between the parties,
and therefore, the interest as per conditions in invoices can be claimed.
In the facts of the said authorities, the tax invoices provided for the
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interest at the rate of 24% p.a.. However, Hon'ble High Court
proceeded to grant interest at the rate of 18% p.a.
13. In the case at hand, the interest mentioned in the tax
invoices is 36% p.a. In my view, it is excessive and in the light of final
order passed by Hon'ble Bombay High Court in the above authorities,
the reasonable rate of interest would be 18% p.a. so far as the interest
from the date of the suit is concerned. As regards presuit interest in the
light of the condition in the tax invoices, it is not necessary to interfere
the interest calculated by plaintiff as the same is in accordance with the
terms of tax invoices. The amount of Rs.4,50,000/ received by the
plaintiff during pendency of the suit needs to be adjusted against the
total claim amount. Thus, plaintiff is entitled to recovery an amount of
Rs.17,10,729/ with interest at the rate of 18%p.a. on the outstanding
amount of Rs.10,30,340/ from the date of the suit.
10. It is pleaded that defendant No.3 is authorized person of
defendant No.1. However, there is no evidence before the Court to
fasten any liability upon defendant No.3. Defendant No.2 is admittedly
the proprietor of defendant No.1, therefore, defendant Nos.1 and 2 are
liable to pay the outstanding balance amount along with interest.
Therefore, the suit is deserves to be partly decreed. Therefore, point
Nos. 1 and 2 are answered in affirmative. In the result, following order
is to be passed :
ORDER
1. Suit No. 390 of 2021 is partly decreed with appropriate costs.
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2. Defendant Nos. 1 to 2, jointly and severally shall to pay the
sum of Rs. 17,10,729/ to plaintiff with interest at the rate of
18% p.a. on Rs. 10,30,340/ from the date of the suit till entire
amount is realised.
3. Decree be drawn up accordingly.
4. Suit No. 391 of 2021 is disposed off accordingly.
(S.B. Pawar)
Judge,
City Civil and Sessions Court
Date.:15.02.2023 Greater Bombay (CR 59)
Declared on : 15.02.2023
Dictated on : 15.02.2023
Transcribed on : 01.03.2023
Checked on : 02.03.2023
Signed on : 08.03.2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.03.2023 at 4.50 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 15.02.2023
Order signed by P.O. on 08.03.2023
order uploaded on 21.03.2023
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