Final Order 1

Order Details: Copy of Judgment
Pdf Text: Comm.Suit No. 135/19. 1 Judgment (Exh.16).
MHCC010054452019
Presented on : 03-06-2019
Registered on : 27-09-2019
Decided on : 15-11-2021
Duration : 2 years, 5 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 135 OF 2019
Exh.16.
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 )...Plaintiffs
Versus
Mr. Mir Osman Ali, Proprietor of Hanifa )
Book Traders, an Adult, Full name & age )
Not known having his address at Wholesale )
& Retail, Shop No. 4, Door No. 122342/1/4, )
Hyderabad 500028 )...Defendant
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 15th NOVEMBER, 2021.
Shri Sudhakar Lakhani, Advocate for the plaintiffs.
None for the defendant.
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Comm.Suit No. 135/19. 2 Judgment (Exh.16).
JUDGMENT
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a proprietary concern carrying on
business of selling books etc. The defendant is the proprietor of Hanifa
Book Traders carrying on business of educational books. Pursuant to
the order placed by the defendant for supply of educational books, the
plaintiff sold, supplied and delivered educational books worth
Rs.37,16,724/ to him through transporter M/s. Decent Lorry Service
during April 2016 to July 2016. The plaintiff has raised invoices from
time to time. Invoices contained condition that interest at the rate of
18% p.a. would be charged if payment is made after 30 days from the
date of invoice. The defendant had made payment of Rs.13,00,000/
during this period and the plaintiff had issued credit notes for
Rs.13,78,208/ in respect of the same. The defendant had made
account payment by cheques and also in cash to the plaintiff. Some of
the cheques given by the defendant were dishonoured and therefore,
the plaintiff's bank debited Rs.7,250/ towards service charges from his
account. The defendant failed to pay balance amount of Rs.10,38,516/
in respect of three invoices as described in para 3 of the plaint.
Advocate for the plaintiff had issued notice dated 22/02/2018 to the
defendant for making payment of Rs.13,91,069/ with interest within
fifteen days, but the defendant did not collect the notice and envelop
was returned with remark 'Intimation Posted'. Hence, the plaintiff filed
the suit for recovery of Rs.14,65,668/ comprising of principal amount
Rs.10,38,516/, interest Rs.4,19,902/ and bank charges Rs.7,250/. He
further claimed interest on the principal amount at the rate of 18% p.a.
from the date of the suit till its realization with costs.
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Comm.Suit No. 135/19. 3 Judgment (Exh.16).
3. The defendant has filed written statement (Exh.5) in
which he has pleaded as under :
The defendant never placed an order to the plaintiff
company and he did not receive delivery of the books. He is a small
shop owner and he cannot imagine or think of placing order of
Rs.37,16,724/. After denying case of the plaintiff, he further pleaded
that manager of the plaintiff namely Pawan Kumar had developed
friendly relations with the defendant in such a manner that he used to
take the stamp and signature on some blank forms under one pretext or
the other and he did not disclose the actual purpose of taking signatures
and stamps on the blank form. He assured the defendant that he would
get commission of 7%. He further pleaded that Mr. Pawan Kumar used
to take the delivery of goods from Decent Lorry Services directly and he
portrayed by misusing the stamp of the defendant that the goods are
actually received by the defendant. This is the case of cheating and
fraud committed by Mr. Pawan Kumar.
4. Mr. Pawan Kumar used to take the defendant to the bank
and deposit the cash in his current account by giving assurance that he
would deposit the money in his company's account and then, he would
get the commission for depositing the said money. He further pleaded
that Mr. Pawan Kumar used to place orders by filling the name of the
school on behalf of the defendant by showing that the order is placed by
the defendant. The defendant had never visited or coordinated with
management of the school mentioned in the order form. Mr. Pawan
Kumar was using the name of the defendant for business dealings with
the schools.
5. After playing the trick with the defendant, Mr. Pawan
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Comm.Suit No. 135/19. 4 Judgment (Exh.16).
Kumar requested him to issue the cheques to the plaintiff company by
assuring that he would provide cash to the defendant. Mr. Pawan
Kumar and his wife Lata assured the defendant that they would clear
the dues of the plaintiff company and requested the defendant not to
initiate criminal action against them. Mr. Pawan Kumar had taken the
books from the defendant in the name and style as 'M/s. Maxwell Books
Private Limited' to the tune of Rs.5,00,000/ and the said amount is not
still returned by Mr. Pawan Kumar. Invoices on record does not bear
signatures of the defendant. In short, the defendant denied entire case
of the plaintiff and blamed Mr. Pawan Kumar for cheating him by
making representation as having been dealing with the plaintiff as the
defendant. He prayed for dismissal of the suit with costs.
6. My learned predecessor framed issues at Exh.6 on
07/01/2021. Then, the plaintiff filed his evidence affidavit as PW 1
(Exh.7) and list of documents (Exh.8) on 10/03/2021. The defendant
and his advocate failed to appear continuously since long. Advocate
Shri Prem Kumar R. Pandey for the defendant withdrew vakalatnama as
per application (Exh.14) filed on 01/09/2021. Therefore, no cross
examination order is passed on evidence affidavit of PW 1 Shaji John on
20/09/2021. Then, the matter was kept for evidence of the defendant
for three dates on 06/10/2021, 20/10/2021 and 23/10/2021, but he
failed to lead evidence. Therefore, evidence of the defendant is closed
on 23/10/2021. Heard learned counsel Shri Sudhakar Lakhani for the
plaintiff.
7. My learned predecessor had framed issues at Exh.6 and I
reproduce the same and record the findings against them for reasons to
follow :
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Comm.Suit No. 135/19. 5 Judgment (Exh.16).
SR.NO. ISSUES FINDINGS
1. Whether plaintiff proves that
amount of Rs.14,65,668/ is due
towards defendant ? In the Affirmative.
2. Whether plaintiff entitle to
recover dues with interest ? In the Affirmative.
2(a). If yes, at what rate ? At the rate of 12% p.a. on
principal amount from the
date of the suit till
realization.
3. Whether defendant proves that
Mr. Pawan Kumar played a
fraud by joining hands with
plaintiff ?
In the Negative.
4. What order and decree ? Suit is partly decreed.
REASONS
AS TO ISSUE NOS.1 TO 3 :
8. PW 1 Shaji John is the Constituted Attorney of the plaintiff
as per Power of Attorney (Exh.9). He has specifically deposed that he
had sold, supplied and delivered to the defendant educational books for
an aggregate amount of Rs.37,16,724/. He further stated about due
amount of Rs.10,38,516/ payable towards invoices (Exhs.10 to 12). He
also proved notice dated 22/02/2018 (Exh.13) forwarded to the
defendant. It has come in his evidence that the defendant made
payment of Rs.13,00,000/ from time to time and credit of
Rs.13,78,208/ was given to him. Evidence of the plaintiff has
remained unchallenged for want of crossexamination and for want of
evidence on the part of the defendant.
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Comm.Suit No. 135/19. 6 Judgment (Exh.16).
9. In addition to it, the defendant has not disputed part
payment made to the plaintiff in cash as well as through the cheques,
but he has just blamed to Mr. Pawan Kumar for misusing him by giving
false promises. In order to substantiate this contention, the defendant
has not brought on record any evidence. Even otherwise, it does not
appear to be probable that Mr. Pawan Kumar was making use of the
defendant to extract the amount in lakhs and for getting the same
deposited in the account of the plaintiff.
10. In short, payments made by the defendant coupled with
invoices produced by the plaintiff substantiate the case of the plaintiff
that he had sold and supplied the educational books to the defendant
and the defendant failed to clear dues in part. Therefore, the plaintiff
has succeeded in establishing his right to recover the claim amount with
costs.
11. So far as rate of pendente lite and postdecree interest is
concerned, Hon'ble Supreme Court has observed in para 55(8) in the
case of Central Bank of India V/s. Ravindra and Others (2002) 1
SCC 367 as under :
“(8) Award of interest pendente lite and postdecree
is discretionary with the court as it is essentially
governed by Section 34 CPC dehors the contract
between the parties. In a given case if the court finds
that in the principal sum adjudged on the date of the
suit the component of interest is disproportionate
with the component of the principal sum actually
advanced the court may exercise its discretion in
awarding interest pendente lite and postdecree
interest at a lower rate or may even decline awarding
such interest. The discretion shall be exercised fairly,
judiciously and for reasons and not in an arbitrary
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Comm.Suit No. 135/19. 7 Judgment (Exh.16).
or fanciful manner.”
12. Observations in the case of Central Bank of India (cited
supra) states about discretion of the court in granting pendente lite and
postdecree interest. Wording of proviso to Section 34 of the CPC
confers discretionary right upon the court to grant interest exceeding
6% and up to the extent of contractual rate of interest. There is only
one negative condition preventing the court from granting interest
beyond the contractual rate of interest. Such negative condition in the
proviso to Section 34 of the CPC cannot be interpreted as granting of
interest at the contractual rate is mandatory. In the light of clear legal
position, the court can exercise the discretion while granting pendente
lite and postdecree interest within limits laid down in Section 34 of the
CPC.
13. In the light of above discussion on legal aspect pertaining
to rate of interest, the plaintiff is entitled to get interest at the rate of
18% p.a. as mentioned in the invoices (Exh.10 to 12) till the date of
filing of the suit. Therefore, the plaintiff is entitled to get the amount
prayed in the plaint. With regard to pendente lite and future interest, it
is necessary to exercise discretion because interest rate mentioned in
the invoices is exorbitant and it is beyond normal range of interest
imposed in commercial transactions. Accordingly, interest at the rate of
12% p.a. is going to be awarded on the principal amount of
Rs.10,38,516/ from the date of the suit till the date of its realization.
Costs of the suit is liable to be imposed on the defendant. In the light of
above discussion, I record my finding as to issues no.1, 2 and 2(a) in
the affirmative with reduction in pendente lite and postdecree interest
as discussed above. I record finding as to issue no.3 in the negative.
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Comm.Suit No. 135/19. 8 Judgment (Exh.16).
Hence, I pass the following order :
ORDER
1. Commercial Suit No. 135/2019 is partly decreed.
2. The defendant is directed to pay amount of Rs.14,65,668/
(Rupees Fourteen Lakhs Sixtyfive Thousand Six Hundred
Sixtyeight Only) to the plaintiff within three months from
the date of decree.
3. The defendant is further directed to pay interest at the rate
of 12% p.a. on principal amount of Rs.10,38,516/ from the
date of the suit till realization.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 15/11/2021. Mumbai.
1. Dictated online on : 15/11/2021.
2. Signed on : 15/11/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 135/19. 9 Judgment (Exh.16).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/11/2021. 5.31 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 15/11/2021.
Judgment/Order signed by P.O. on 15/11/2021.
Judgment/Order uploaded on 15/11/2021.
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