Final Order 1

Order Details: Other
Pdf Text: SJ No. 175 /2019
Shilpafab – F.W.Team
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MHCC010053422019
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Summons for Judgment No. 175 / 2019
in
Commercial Suit No. 828 / 2021
Shilpafab
A registered partnership firm
Having its registered office at and
from 202, Shree Krishna Cloth
Market, Vithalwadi, Kalbadevi
Road, Mumbai 400 002
Through its partner Mr. Puneet
Bindra Behari Mehra, Age 45 Yrs. … Plaintiff
Vs.
1. F.W. Team
A partnership firm having its office
at and from Plot No. 35, Somnath
Co-op. Ind Soc., Somnath Road,
Kevdi Flia, Dabhal, Daman 3960215
And residing at Santosh Tower
Co-op. Hsg. Soc., Flat No. 1302,
13th Floor, Sameem Nagar, Cross
Road No. 3, Lokhandwala Complex,
Andheri (W), Mumbai 400 053.
2A Deepa Hakani
2B Jash Hakani
2C Vishesh Hakani
All adult, Indian Inhabitants
Having their address at
Santosh Tower Co-op. Hsg. Soc.,
Flat No. 1302, 13th Floor, Sameem
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Nagar, Cross Road No. 3, Lokhandwala
Complex, Andheri (W), Mumbai 400 053.
3. Nimish Hakani
of Mumbai an adult Indian Inhabitant
carrying on business as a Partner of
F.W. Team at and from Plot No. 35,
Somnath Co-op. Ind Soc., Somnath Road,
Kevdi Flia, Dabhal, Daman 3960215
And residing at Santosh Tower
Co-op. Hsg. Soc., Flat No. 1302,
13th Floor, Sameem Nagar, Cross
Road No. 3, Lokhandwala Complex,
Andheri (W), Mumbai 400 053. … Defendants
Appearances :
Plaintiff : Adv. Mr. Ramesh Jain
Defendant No. 2 : Adv. Ms. Anoushka Goyal
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 11.07.2025
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ORDER
1. Plaintiff sued defendants to recover Rs. 8,36,545.19/-.
Crux of the Suit is as follows :
2. Plaintiff a registered partnership firm on 17.03.2016,
25.03.2016 and 21.05.2016 supplied goods to defendants vide invoice
nos. 689, 690 and 707 worth Rs.10,07,448/-. Invoice No. 707 worth
Rs.7,33,866/- is the subject matter of present suit, as defendants failed
to pay amount under this invoice only. Defendants issued cheque nos.
000810 to 000813 in favour of plaintiff. However, all cheques were
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dishonored. Notice was issued to defendants, but defendants failed to
repay the amount. Hence, present suit is filed.
3. Writ of summons was issued to defendant no. 1 and 2 filed
Vakalatnama on 28.01.2019 and defendant no. 3 on 05.08.2023.
However, defendants not applied for leave to defend. Hence, plaintiff
tendered Summons for Judgment No. 175/2019. Defendants neither
filed reply nor applied for leave to defend. As per roznama Dt.
13.03.2025, it is recorded that Summons for Judgment will proceed
without reply / leave to defend.
4. During pendency of proceeding, defendant no. 2 passed away
on 28.04.2021. Hence, his legal representatives i.e. defendant nos.
2(A), 2(B) and 2(C) are taken on record, but they have not applied for
leave to defend though they filed written argument at Exh.12.
5. While making submission on Summons for Judgment,
Advocate for plaintiff submits that defendants not applied for leave to
defend. Hence, plaintiff is entitled for Judgment forthwith. Advocate for
legal representatives 2(A) to 2(C) submits that these legal
representatives have not inherited any property of defendant no. 2.
They are not concerned with the transaction so no adverse order may be
passed against them.
6. Considering rival submissions, following points arise for my
determination and I have recorded my findings for the reasons
discussed as follows:
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Sr.
No.
Points Findings
1 Is plaintiff entitled to Summons
for Judgment?
In the affirmative.
2 What order? Summons for
Judgment is allowed
and Commercial Suit
is decreed as per
final order.
R E A S O N S
Reasons as to Point Nos. 1 and 2
7. I have gone through original documents, which plaintiff filed
on record. Exh.A original invoice No. 707 Dt. 21.05.2016 shows that
goods worth Rs. 7,33,866/- was supplied to defendants. Its delivery
challan Dt. 12.03.2016, 21.05.2016 are placed on record along with
transport receipt. As per plaintiff, defendant issued cheque no. 810 to
813 as payment of outstanding amount. These are the cheques Dt.
20.06.2016, 05.07.2016, 20.07.2016 and 30.07.2016 of Rs. 1,50,000/-
each except cheque Dt. 30.07.2016. Last cheque i.e. no. 000813 Dt.
30.07.2016 is of Rs. 1,29,037/-.
8. Four original dishonor memos are placed on record which
established that all cheques were dishonored for want of funds in
account of defendant. Demand notice Dt. 02.02.2018 was sent to
defendants. Original postal receipt and RPAD cards are annexed with it.
Thus, there is strong documentary evidence on record and there is no
reason for this Court to brush it aside. Despite of having opportunity,
defendants not bothered to apply for leave to defend.
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9. Thus, under Order XXXVII Rule 6(a) of Code of Civil
Procedure, 1908 (the Code, for short), plaintiff is entitled to Judgment.
So far as liability of defendant nos. 2(A) to 2(C) is concerned, they are
not exempted only because they are legal heirs of defendant no. 2. On
the same point, plaintiff relied on Judgment of Hon’ble Bombay High
Court in case of Bank of India Vs. M/s. Industrial Polymer reported in
(1991) 93 BOMLR 218.
10. In Bank of India (Supra), dealing with Order XXXVII Rule 2
and Section 52 and 47 of the Code, Hon’ble High Court held that,
“Order XXXVII does not exclude from its purview a suit where the heirs
and legal representatives of a deceased are party defendants”. Ruling is
squarely applicable to the facts in hand. Amount claimed by plaintiff i.e.
Rs.8,36,545.19/- is inclusive of interest till date of filing suit. So on this
amount, plaintiff is entitled to get 9% interest per annum from the date
of suit till realization of entire amount.
11. Thus, Summons for Judgment succeed and it is allowed.
Hence I answer point no. 1 in affirmative and point no. 2 as, “Summons
for Judgment is allowed and Commercial Suit is decreed as per final
order.” Hence following order is passed :
ORDER
1. Summons for Judgment No. 175 / 2019 is allowed.
2. In view of Order XXXVII Rule 6(a) of the Code, Commercial
Suit No. 828/2021 is decreed as follows :
i. Commercial Suit No. 828 / 2021 is decreed with
cost.
ii. Plaintiff is entitled to recover Rs.8,36,545.19 /- (Rs.
Eight Lakhs Thirty Six Thousand Five Hundred
Forty Five and Nineteen Paise only) from
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defendants with 9% interest per annum from the
date of suit till realization of entire amount.
iii. Defendants, within three months from date of this
order, shall jointly and severally pay
Rs.8,36,545.19/- (Rs. Eight Lakhs Thirty Six
Thousand Five Hundred Forty Five and Nineteen
Paise only) to the plaintiff, with 9% interest per
annum from the date of suit till realization of entire
amount.
iv. Decree be drawn up accordingly.
3. Order is dictated and pronounced in open Court.
4. After compliance and period of Appeal, Shirestedar and AS to
consign Record of the suit, to Record Room.
5. Record of Summons for Judgment No. 175 / 2019 shall be
part of main Commercial Suit No. 828 / 2021.
6. Proceedings of Summons for Judgment No. 175 / 2019 and
Commercial Suit No. 828 / 2021 are closed.
Mumbai
Dated : 11.07.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
Dictated on : 11.07.2025
Transcribed on : 11.07.2025
Signed by HHJ on : 11.07.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11.07.2025 5.15 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
11.07.2025
Judgment/order signed by P.O on 11.07.2025
Judgment/order uploaded on 11.07.2025
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