Full Order Text
Final Order 1 · 25 Apr 2019 · CNR MHCC010053382018
Order Details: Ex-parte Judgement Pdf Text: :1: Summary Suit No.653/2018 Received on : 20.04.2018 Registered on : 22.06.2018 Decided on : 25.04.2019 Duration : Y M D 01 00 06 IN THE BOMBAY CITY CIVIL COURT AT MUMBAI SUMMARY SUIT NO. 653 OF 2018 CNR NO.: MHCC010053382018 METAL STAR, a firm carrying on business from, 2nd floor, No.2, 123 Kika Street, Mumbai – 400 004 through its proprietor Mr. Nemish P. Shah, age 39 years, of Bombay Indian Inhabitant, residing at Pratiksha Tower, 9th Floor, Flat No.4, A Wing, R.S. Nimkar Road, Opp. Bus Depot Mumbai Central H.O, Mumbai Central – 400 008. ...Plaintiff Versus 1. Mr. Parag Hasmukh Goradia adult age unknown of Building No.6, Block No.4, 1 st Floor, Majithia Nagar, CoOp Housing Society, S.V. Road, Kandivali (W), Mumbai 400 067 son, legal heir and legal representative of his father Hasmukh Goradia carrying on business in the firm name and style of Nipa Enterprises as its proprietor. 2. Mr. Dharmesh Hasmukh Goradia adult age unknown of Building No.6, Block No.4, 1 st Floor, Majithia Nagar, CoOp Housing Society, S.V. Road, Kandivali (W), Mumbai – 400 067 son, legal heir and legal representative of his father Hasmukh Goradia carrying on business in the firm name and style of Nipa Enterprises as its proprietor. ….Defendants. -- 1 of 13 -- :2: Summary Suit No.653/2018 Appearances: Advocate Mr. Prashant H. Chande for the Plaintiff. Defendant Exparte. CORAM : HER HONOUR JUDGE S.P. AGARWAL (C.R.NO.28) DATED : 25th APRIL, 2019. [ J U D G M E N T ] Story of plaintiff in short is as under : 1. Plaintiff has stated that the defendants are the legal heirs and legal representative of one Mr. Hasmukh Goradia. Mr. Hasmukh Goradia expired in Bombay. Mr. Hasmukh Goradia during his life time was carrying on business in the firm name and style of Nipa Enterprises as its proprietor. Plaintiff has further stated that they had business transaction with the said Mr. Hasmukh Goradia and his firm Nipa Enterprises (hereinafter referred to as “Nipa Enterprises” for the sake of brevity). The defendants are carrying on business and residing at the address mentioned against their names in the cause title above. The plaintiff and defendants are traders. 2. Plaintiff has further stated that the Nipa Enterprises had negotiations with them for sale and supply of various goods namely, Copper Strip/Wire/bars of various quality, quantity and sizes (hereinafter referred to as “said good” for the sake of brevity). Plaintiff has further stated that it was agreed that the payment for the price of the said goods was to be made by Nipa Enterprises within 30 days by PDC. It was also agreed that Nipa Enterprises will pay interest to them at the rate of 24% p.a. for overdue period. Plaintiff has further stated that pursuant to the said discussions and negotiations, Nipa Enterprises -- 2 of 13 -- :3: Summary Suit No.653/2018 has placed orders on them for supply of the said goods. 3. Plaintiff has further stated that they raised upon and submitted to Nipa Enterprises its invoices for the price of the said goods. The terms pertaining to rate of interest are mentioned on the invoices submitted to the defendant. The goods were sold and supplied to defendant subject to the said terms. Nipa Enterprises has never raised any dispute regarding the terms and conditions mentioned in the said Invoices. The details of the said invoice numbers, dates, amounts with respective delivery challan numbers with respective dates are as follows: Sr. No. Invoice No. Date Amount Delivery Challan No. Delivery Challan Date 1. E005 11.04.2016 54,419/ E005 sent by Motor Transport to Deltron Electronics at Vasai Industrial Estate, Gala No.1, Section1, Vasai (e). 11.04.2016 2. 6578 26.04.2016 33,329/ 6578 signed by Mr. Pramod Employee of Nipa Enterprises 26.04.2016 3. E015 09.05.2016 84,938/ E015 signed by Mr. Hasmukh Goradia 09.05.2016 4. E034 21.06.2016 28,940/ E034 signed by Mr. Hasmukh Goradia 21.06.2016 Total 2,01,626/ The plaintiff craves leave refer to and rely upon the other documents pertaining to the transactions. 4. Plaintiff has further stated that thereafter, Nipa Enterprises made -- 3 of 13 -- :4: Summary Suit No.653/2018 part payment of Rs.30,000/ towards bill No.E015, thus leaving a sum of Rs.84,938/ and all accrued interest from the due date of the said bill due and payable by Nipa Enterprises to them. The details and particulars of the said payments are as follows: Sr. No. Date of Part Payment Mode of Part Payment Amount of Part Payment 24.12.2016 By 30000/ 30,000/ 5. Plaintiff has further stated that after considering the said part payment, a sum of Rs.1,71,626/ and all accrued interest at the rate of 24% p.a. from the respective due dates of the invoices remains due and payable by the defendant to the plaintiff. Sr. No. Invoice No. Date Amount Amount REC Balance AMT 1 E005 11.04.2016 54,419/ 54,419/ 2 6578 26.04.2016 33,329/ 33,329/ 3 E015 09.05.2016 84,938/ 30,000/ 54,938/ 4 E034 21.06.2016 28,940/ 28,940/ Total 2,01,626/ 30,000/ 1,71,626/ 6. Plaintiff has further stated that they have time and again demanded from Nipa Enterprises and called upon Nipa Enterprises to pay the said balance price of the goods and all accrued interest thereon. Thereafter, towards the discharge of its debt and liability for the balance payment of the price of the said goods delivered to Nipa Enterprises under its aforesaid invoices, Nipa Enterprises drew in favour of and delivered the following cheques to the them. Sr. No. Bill No. Cheque No. Cheque Date Amount 1 E005 000213 Undated 54,419/ 2 6578 000215 Undated 33,329/ -- 4 of 13 -- :5: Summary Suit No.653/2018 3 E015 000216 14.03.2017 24,938/ 4 000217 Undated 30,000/ 5 E034 000219 Undated 28,940/ Total 1,71,626/ 7. Plaintiff has further stated that thereafter they have time and again demanded from Nipa Enterprises and called upon Nipa Enterprises to pay the balance price of the said goods and all accrued interest thereon. Nipa Enterprises promised and agreed to pay to them balance amount due on various occasions. Thereafter, Nipa Enterprises has pleaded its financial difficulties and has requested them to bear with Nipa Enterprises for some time. Nipa Enterprises has however, failed and neglected to pay to them the amount due or any part thereof or any interest accrued due thereon. Plaintiff has further stated that Nipa Enterprises has merely kept them on false promises and assurances. Thereafter, Mr. Hasmukh Goradia has expired. 8. Plaintiff has further stated that they thereafter through their Advocate issued a Notice dated 19.01.2018, placing on record the aforesaid facts and called upon Nipa Enterprises and defendant No.2 to pay to them, the said sum of Rs. 1,71,626/ being the balance price of the goods sold and supplied to Nipa Enterprises under the aforesaid invoices together with all accrued interest at the rate of 24% p.a. for the overdue period. Plaintiff has further stated that Nipa Enterprises and the defendants have failed and neglected to comply with the requisitions contained in the said notice and has failed to pay them the balance price of the goods sold and supplied to Nipa Enterprises. Plaintiff has further stated that in the aforesaid, there is now due and payable by the defendants to them a sum of Rs.2,62,548/ from the date -- 5 of 13 -- :6: Summary Suit No.653/2018 of the invoices till the date of the filing of the suit. Therefore, plaintiff filed this suit. 9. Defendant Nos. 1 and 2 failed to appear in the suit, therefore, suit has proceeded exparte against them. 10. Heard the Ld. Advocate for the plaintiff. 11. Following points arise for determination and their findings followed by reasons are as stated below: Sr. No. POINTS FINDINGS 1. Whether plaintiff is entitled to get amount of Rs.2,62,548/ from defendants along with interest @ 24% p. a. on the sum of Rs.1,71,626/ from the date of filing of the suit till its realisation ? ...Partly in the affirmative. 2. What order and Decree ? ...As per final order REASONS 12. Plaintiff has filed evidence of Mr. Nemish P. Shah (P.W.1), Proprietor of the plaintiff below Exh.6 in the form of affidavit. Plaintiff relied upon the following documents as documentary evidence which are as under : Sr. No. Exhibits Date Particulars 1. Exh.8 11.04.2016 Invoice bearing No.E005 for Rs.54,419/ 2. Exh.9 11.04.2016 Delivery Challan bearing No.E005 3. Exh.10 24.04.2016 Invoice bearing No.6578 for Rs.33,329/ 4. Exh.11 26.04.2016 Delivery Challan bearing No.6578. 5. Exh.12 09.05.2016 Invoice bearing No.E015 for Rs.84,938/ -- 6 of 13 -- :7: Summary Suit No.653/2018 6. Exh.13 09.05.2016 Delivery Challan bearing No.E015 7. Exh.14 21.06.2016 Invoice bearing No.E034 for Rs.28,940/ 8. Exh.15 21.06.2016 Delivery Challan bearing No.E034 9. Exh.16 Cheque bearing No.000213 for Rs.54,419/ 10. Exh.17 Cheque bearing No.000215 for Rs.33,329/ 11. Exh.18 14.03.2017 Cheque bearing No.000216 for Rs.24,938/ 12. Exh.19 Cheque bearing No.00217 for Rs.30,000/ 13. Exh.20 Cheque bearing No.000219 for Rs.28,940/ 14. Exh.21 19.01.2018 Print out of the notice 15. Exh.22 Postal Receipt 16. Exh.23 A.D. Card AS TO POINT NOS. 1 AND 2: 13. Plaintiff has filed evidence of Mr. Nemish P. Shah (P.W.1) in the form of affidavit below Exh.6 and stated in his evidence that the defendants are the legal heirs and legal representative of one Mr. Hasmukh Goradia. Mr. Hasmukh Goradia expired in Bombay. Mr. Hasmukh Goradia during his life time was carrying on business in the firm name and style of Nipa Enterprises as its proprietor. He has further stated that he had business transaction with the said Mr. Hasmukh Goradia and his firm Nipa Enterprises. He has further stated that the defendants are carrying on business and residing at the address mentioned against their names in the cause title above. He has further stated that the plaintiff and defendants are traders. 14. Mr. Nemish P. Shah (P.W.1) has further stated that Nipa Enterprises had negotiations with him for sale and supply of various goods namely, Copper Strip/Wire/bars of various quality, quantity and sizes. He has further stated that it was agreed that the payment for the price of the said goods was to be made by Nipa Enterprises within 30 -- 7 of 13 -- :8: Summary Suit No.653/2018 days by PDC. It was also agreed that Nipa Enterprises will pay interest to him at the rate of 24% p.a. for overdue period. He has further stated that pursuant to the said discussions and negotiations, Nipa Enterprises has placed orders on the plaintiff for supply of the said goods. 15. Mr. Nemish P. Shah (P.W.1) has further stated that pursuant to the said orders and instructions of Nipa Enterprises, he sold, supplied and delivered to Nipa Enterprises the said ordered goods at the mutually agreed rates of the aggregate value of Rs.2,01,626/ under its various delivery challans. He has further stated that Nipa Enterprises has accepted the said goods and has never raised any objection as to the quality, quantity or price of the said goods. 16. Mr. Nemish P. Shah (P.W.1) has further stated that he raised upon and submitted to Nipa Enterprises invoices for the price of the said goods. The terms pertaining to rate of interest are mentioned on the invoices submitted to Nipa Enterprises. The goods were sold and supplied to Nipa Enterprises subject to the said terms. Nipa Enterprises has never raised any dispute regarding the terms and conditions mentioned in the said Invoices. Even otherwise Nipa Enterprises is bound and liable to pay, to the plaintiff, interest under the provisions of Sale of Goods Act. The details of the said invoice numbers, dates, amounts with respective delivery challan numbers with respective dates are as follows: Sr. No. Invoice No. Date Amount Delivery Challan No. Delivery Challan Date 1. E005 11.04.2016 54,419/ E005 sent by Motor Transport to Deltron Electronics 11.04.2016 -- 8 of 13 -- :9: Summary Suit No.653/2018 at Vasai Industrial Estate, Gala No.1, Section1, Vasai (e). 2. 6578 26.04.2016 33,329/ 6578 signed by Mr. Pramod Employee of Nipa Enterprises 26.04.2016 3. E015 09.05.2016 84,938/ E015 signed by Mr. Hasmukh Goradia 09.05.2016 4. E034 21.06.2016 28,940/ E034 signed by Mr. Hasmukh Goradia 21.06.2016 Total 2,01,626/ 17. Mr. Nemish P. Shah (P.W.1) has further stated that thereafter, Nipa Enterprises made part payment of Rs.30,000/ towards bill No.E015. Thus a sum of Rs.84,938/ and all accrued interest from the due date of the said bill due and payable by Nipa Enterprises to him. The details and particulars of the said payments are as follows: Sr. No. Date of Part Payment Amount of Part Payment 1. 24.12.2016 30,000/ 18. Mr. Nemish P. Shah (P.W.1) has further stated that after considering the said part payment, a sum of Rs.1,71,626/ and all accrued interest at the rate of 24% p.a. from the respective due dates of the invoices remains due and payable by the defendants to the him. Sr. No. Invoice No. Date Amount Amount REC Balance AMT 1 E005 11.04.2016 54,419/ 54,419/ 2 6578 26.04.2016 33,329/ 33,329/ 3 E015 09.05.2016 84,938/ 30,000/ 54,938/ 4 E034 21.06.2016 28,940/ 28,940/ Total 2,01,626/ 30,000/ 1,71,626/ -- 9 of 13 -- :10: Summary Suit No.653/2018 19. Mr. Nemish P. Shah (P.W.1) has further stated he has time and again demanded from Nipa Enterprises and called upon Nipa Enterprises to pay the said balance price of the goods and all accrued interest thereon. Thereafter, towards the discharge of its debt and liability for the balance payment of the price of the said goods delivered to Nipa Enterprises under its aforesaid invoices, Nipa Enterprises drew in favour of and delivered the following cheques to the plaintiff. Sr. No. Bill No. Cheque No. Cheque Date Amount 1 E005 000213 Undated 54,419/ 2 6578 000215 Undated 33,329/ 3 E015 000216 14.03.2017 24,938/ 4 000217 Undated 30,000/ 5 E034 000219 Undated 28,940/ Total 1,71,626/ 20. Mr. Nemish P. Shah (P.W.1) has further stated that thereafter he has time and again demanded from Mr. Hasmukh Goradia and called upon Mr. Hasmukh Goradia to pay the balance price of the said goods and all accrued interest thereon. Mr. Hasmukh Goradia promised and agreed to pay to him the balance amount due on various occasions. Thereafter, Mr. Hasmukh Goradia has pleaded his financial difficulties and has requested him to bear with him for some time. Mr. Hasmukh Goradia has however, failed and neglected to pay to him the amount due or any part thereof or any interest accrued due thereon. He has further stated that Mr. Hasmukh Goradia has merely kept him on false promises and assurances. He has further stated that thereafter Mr. Hasmukh Goradia has expired. 21. Mr. Nemish P. Shah (P.W.1) has further stated that thereafter -- 10 of 13 -- :11: Summary Suit No.653/2018 through his Advocate issued a Notice dated 19.01.2018, sent by R.P.A.D., placing on record the aforesaid facts and called upon Nipa Enterprises and defendant No.2 to pay to the plaintiff, the said sum of Rs. 1,71,626/ being the balance price of the goods sold and supplied to Nipa Enterprises under the aforesaid invoices together with all accrued interest at the rate of 24% p.a. for the overdue period. Plaintiff has further stated that Nipa Enterprises and the defendants have failed and neglected to comply with the requisitions contained in the said notice and has failed to pay him the balance price of the goods sold and supplied to Nipa Enterprises. He has further stated that the defendants have not replied to the said Notice. 22. Mr. Nemish P. Shah (P.W.1) has further stated that the defendants are liable to pay to him overdue interest at the rate of 24% per annum. The said amount of interest from the due date of the invoices till the date of the filing of the Suit comes to Rs.90,928 (typed as 90,974/ in Plaint). He has further stated that the said rate of interest is contractual and agreed rate of interest. The suit transaction is a commercial transaction. He has further stated that plaintiff and defendants are traders. He has further stated that he is also entitled to the future interest on the said balance amount of said amount of Rs.1,71,626/ at the rate 24% per annum or at such other rate as this Court may deem fit from the date of the filing of the suit until payment and realization. 23. Mr. Nemish P. Shah (P.W.1) has further stated that there is now due and payable by the defendants to the plaintiff a sum of Rs.2,62,548/ from the due date of the invoices till the date of the filing of the suit as per the particulars of claim. -- 11 of 13 -- :12: Summary Suit No.653/2018 24. Plaintiff has adduced all the corroborating documents which are original Invoices, Delivery Challans, original cheques, Copy of the Notice, Postal receipt and A.D. Card on record as documentary evidence. The oral evidence of plaintiff is corroborated by documentary evidence. Defendant have failed to challenge all the allegations in the plaint and evidence of plaintiff. Therefore, plaintiff has proved that it is entitled to get sum of Rs.2,62,548/ from both the defendants jointly. 25. It appears that as per Section 34 of the Code of Civil Procedure, it will be proper to direct defendants to give interest @ 9% p.a. on the amount of Rs.1,71,626/ from the date of filing of the suit till its realisation. Hence, answer point No.1 partly in the affirmative and pass following Order: ORDER 1. Suit is partly decreed with cost. 2. Defendant Nos. 1 and 2 are jointly directed to pay sum of Rs.2,62,548/ to plaintiff along with interest @ 9% p.a. on the principal sum of Rs.1,71,626/ from the date of filing of the suit till its realisation. 3. Decree be drawn accordingly. 4. Court fee be refunded as per rules. (S.P. AGARWAL) Judge, Date: 25.04.2019. City Civil Court, Gr. Bombay. Dictated on : 25.04.2019 Transcribed on : 25.04.2019 Signed on : 25.04.2019 -- 12 of 13 -- :13: Summary Suit No.653/2018 CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.” 06.05.2019 At 3:39 p.m. Mr. Subhash Sukhdeo Poul UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge (With Court Room No.) HHJ Ms. S.P. Agarwal (C.R.NO.28) Date of pronouncement of Judgment/Order 25.04.2019 Judgment/Order signed by P.O. on 25.04.2019 Judgment/Order uploaded on 06.05.2019 -- 13 of 13 --