Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Suit No.136-2019
Suit lodged on: 13th June, 2019
Suit decided on: 27th February, 2020
Total duration: 8 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C.SUIT(COM) NO. 136 OF 2019
(CNR NO.MH CCO1-005443-2019)
M/s.Chetana Book Depot,
a partnership firm, having its registered
office at 4th floor, ‘B’wing, Building ‘E’
Trade Link, Kamla City, Above Bombay
Canteen, Lower Parel, Mumbai 400 013. ..Plaintiff
V/s.
1. M/s.Saraswati Enterprises,
C/o. Bailram Naik
Shikshan Sanstha, Beed Road,
Abdul Pachod, Paithan,
Aurangabad431120.
2. Balram Naikh Shilshan Sanstha,
Beed Road,Abdul Pachod,
Paithan,Aurangabad431120.
3. Gyanesh Janardhan Rathod, an adult,
Prop. Of M/s. Riddhi Siddhi Book Palace,
C/o. Of Balram Naik Shikshan Sanstha
Beed Road, Abdul Pachod, Paithan,
Aurangabad431120 and also at P. No.1,
High Court Colony, Satara Parisar
Beedbypass, Aurangabad431121. ..Defendants
Ld. advocate Mr.Lakhani for the plaintiff.
None for defendants.
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CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 27th February, 2020
ORAL JUDGMENT
1. This is a suit for recovery of an amount in respect of the
books sold to defendant no.1.
2. The contention of the plaintiff is that defendant nos.1,2 and
3 are jointly and severally liable to pay the amount, payable to the
plaintiff. The plaintiff sold educational books and delivered to
defendant no.1 during the period from May 2016 to August 2016. The
plaintiff has supplied and delivered defendant no.1 books worth
Rs.25,88,493/. The defendant no.1 used to make the payment time to
time in respect of the goods for which the plaintiff used to issue credit
notes. Defendant no.3 has issued cheques for an aggregate amount of
Rs.10,75,699/. All the cheques were dishonoured. Inspite of repeated
requests, demands and reminders by the plaintiff, defendant nos.1 and
2 failed and neglected to make the payment of Rs.8,24,050/. The
plaintiff has issued notice through it’s advocate dated 27/01/2018,
called upon defendants to make the payment of Rs.9,21,611/. The
notice was duly served upon the defendants but the defendants failed to
make the payment. Hence, the plaintiff has filed the suit.
3. The suit was proceeded exparte.
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4. On the contentions of the plaintiff, following points arise
for my determination and findings to it are recorded for the reasons
stated hereinafter:
POINTS
1. Whether the plaintiff proves that plaintiff is entitled for an
amount of Rs.11,71,341/, if yes, at what rate of interest?
2. What order and decree
FINDINGS
1. In the affirmative
2. As per final order.
REASONS
5. In order to support it’s case, on behalf of the plaintiff, it’s
power of attorney entered the witness box. It is the contention of the
plaintiff that pursuant to the oral orders placed by defendant no.2,
plaintiff sold and supplied educational books to defendant no.1 during
the period from May 2016 to August 2016 for a agreed sum of
Rs.25,88,493/. The plaint suggest that the order was placed by
defendant no.2 but in the evidence it was elaborated that the said order
was oral. Defendant no.2 as per plaint avernments is a trust running a
school. So, trust would have issued oral order and plaintiff accepted
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the same appears to be improbable and unacceptable.
6. The contention of the plaintiff is that the goods were
supplied vide invoice Ex.6 to Ex.10. It is also the stand of the plaintiff
that the books were supplied to the tune of Rs.25,88,493/. The
defendant no.1 has returned the books worth Rs.14,64,443/. There is
no material to show that the books worth Rs.25,88,493/ were supplied
to the defendants and defendant no.1 returned the books worth
Rs.14,64,443/, the copy of the credit note issued by the plaintiff are
also not produced.
7. On perusal of the evidence of the plaintiff, it appears that
the books were supplied to defendant no.1. The invoices Ex.6 to 10 are
filed to that effect. The accounts statement (Ex.14) is also filed. The
account of defendant no.1 was duly maintained with plaintiff in
ordinary course of its business and show the entries in respect of the
sales made. The plaintiff is claiming principal amount of Rs.8,24,050/.
There is no rebuttal to the evidence of the plaintiff. The plaintiff has
established by way of documentary evidence that the plaintiff is entitled
to recover the amount of Rs.8,24,050/. The goods were supplied to
defendant no.1. It is the contention of defendant no.1 that on the oral
order of defendant no.2, the goods were supplied to defendant no.1.
Defendant no.2 is a trust which runs the school. There is nothing on
record to show the resolution of the trust and trust in it’s ordinary
course of business has issued the direction and therefore the trust is not
liable for any liability of the plaintiff.
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8. Defendant no.3 by writing (Ex.11) dated 20/09/2016 had
guaranteed the payment which is due and payable by defendant no.1 to
the plaintiff. The guarantee is after the goods were given on credit by
defendant no.1 to the plaintiff. By the said guarantee, defendant no.3
admit the guarantee for the payment of the amount due and payable by
defendant no.1 to the plaintiff, therefore defendant no.3 is also liable
for the payment.
9. The plaintiff has claimed amount of Rs.11,71,341/. The
plaintiff has claimed interest at the rate of 18% p.a. if the payment is
not made within 30 days. The payment is not made within 30 days and
hence the plaintiff is entitled for interest as per the agreed rate of
interest at 18% p.a. Therefore the plaintiff is entitled for an amount of
Rs.11,71,391/ and also further interest at the rate of 18% p.a. from the
date of suit till its realization. Hence, I answer point no.1 in the
affirmative.
Point no.2
10. In view of the above, I pass the following order:
ORDER
1. Suit is decreed with costs.
2. Defendant no.1 and 3 jointly and severally to pay an amount of
Rs.11,71,341/ to the plaintiff.
3. Defendant nos.1 and 3 jointly and severally to pay further interest at
the rate of 18 % per annum on the amount of Rs.8,24,050/ from the
date of filing of the suit till its realization.
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4. Decree be drawn accordingly.
27/2/2020 (M.SALMAN AZMI)
Judge, City Civil Court,
Gr.Bombay.
Dictated on : 27/02/2020
Typed on : 17/03/2020
Signed on : 11/06/2020
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