Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 683/21. 1 Ex-parte Judgment (Exh.14).
MHCC010057202018
Presented on : 25-04-2018
Registered on : 20-06-2018
Decided on : 08-12-2021
Duration : 3 years, 7 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 683 OF 2021
(OLD SUMMARY SUIT NO. 648 OF 2018)
Exh.14.
Tellabs Chemicals Pvt. Ltd. )
a Private Limited Company having its )
Registered office at Kamanwala Chambers, )
4th Floor, Sir P M Road, Fort, )
Mumbai – 400 001 )...Plaintiffs
Versus
Naachiar Paper Board Pvt. Ltd. )
having its address at S. F. No.352 & 353, )
Sevalpatti Village Post office )
Near Vembakottai, Sivakasi (Via), )
Tamilnadu626140 )
And also at :
59, Gowthamapuri Nagar, Peelamdedu )
Coimbatore641 004, Tamil Nadu )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 8th DECEMBER, 2021.
Ms. Harsha Shah, Advocate for the plaintiffs.
Defendants – (Exparte).
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Comm.Suit No. 683/21. 2 Ex-parte Judgment (Exh.14).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is dealer of industrial chemicals mainly
pertaining to paper industry and selling and providing various types of
goods to their customers throughout India. The defendant is a paper
board industry having regular dealing with the plaintiff. The plaintiff
had sold and supplied goods to the defendant at their factory of
Shivakasi as per purchase orders placed by him. The defendant made
part payment of Rs.1,00,000/ on 30/11/2015 and 13/01/2016,
Rs.28,192/ on 25/01/2016 and Rs.2,99,589/ on 23/08/2016. The
plaintiff had supplied 1,000 kg. Telfloc–285 at the plant of the
defendant, but 900 kg. product was returned by the defendant with
debit note leaving outstanding amount of Rs.36,102/ in respect of
invoice dated 11/11/2014. The plaintiff contacted the defendant again
and again for payment of dues, but he failed to clear arrears of dues.
Defendants have made various commitments regarding the payment of
the outstanding amount by emails dated 31/08/2015 and 09/03/2016.
Then, the defendant issued eight postdated cheques for the payment of
outstanding dues of Rs.14,75,000/. The plaintiff presented cheque no.
465050 dated 25/02/2017 with his banker i.e. Band of India,
Churchgate Branch and it was dishonoured for the reason 'Funds
Insufficient' as per dishonour memos of Axis Bank and Bank of India
dated 28/02/2017 and 02/03/2017 respectively. The defendants
requested the plaintiff not to deposit other cheques for encashment due
to their financial difficulties. The plaintiff sent emails on 18/04/2017
and 06/12/2017 to the defendant asking for payment. The defendant
also received confirmation of account for the year 201617 on
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Comm.Suit No. 683/21. 3 Ex-parte Judgment (Exh.14).
20/07/2017, but he did not dispute the liability. Then, the plaintiff
sent notice dated 06/12/2017 through his advocate to the defendant
making demand of principal amount of Rs.27,15,382/ and interest of
Rs.23,95,709 calculated at the rate of 24% p.a. The defendant did not
claim the notice. Hence, the plaintiff filed the suit for recovery of
outstanding amount of Rs.53,07,491/ with further interest at the rate
of 24% p.a. from the date of filing of the suit till the date of realization
with costs of the suit.
3. The defendant is duly served with writ of summons as per
affidavit of service, but he failed to appear and oppose the claim of the
plaintiff. Therefore, my learned predecessor passed the exparte order
against him on 16/10/2019.
4. PW 1 Rajesh Kewalkishan Khanna, Constituted Attorney of
the plaintiff deposed on evidence affidavit (Exh.2) and proved
documents filed with list of documents (Exh.3). Proved documents are
at Exh.4 to 12. The plaintiff closed evidence vide pursis (Exh.13).
Heard learned counsel Ms. Harsha Shah for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.53,07,491/ from the defendant ? If
yes, at what rate of interest ? In the Affirmative.
@ 12% p.a.
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Comm.Suit No. 683/21. 4 Ex-parte Judgment (Exh.14).
2. What order as to costs ? As per final order.
3. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 AND 2 :
6. PW 1 Rajesh has deposed about supply of goods as per 13
purchase orders (Exh.5 colly.) to the defendant. He proved 14
consignment notes (Exh.6 colly.) and 17 invoices (Exh.7 colly.). E
mails dated 31/08/2015 and 09/03/2016 are marked as Exh.8 colly.
These emails demonstrate that the defendant has admitted the liability
and given commitment to pay without fail. He had also given proposal
of payment in six installments as mentioned in email dated
09/03/2016. Subsequently, eight cheques were issued by the
defendant, but cheque no. 465050 is dishonoured as per dishonour
memo dated 02/03/2017 (Exh.9). The defendant had received
confirmation of account as per acknowledgement (Exh.10 colly.). The
plaintiff has sent through courier ledger account (Exh.11 colly.) to the
defendant. Ledger account reveals that principal amount of
Rs.35,07,061/ was due as on 15/03/2016. The notice(Exh.12) is
issued on 06/12/2017. Present suit is filed on 25/04/2018. Suit is
filed well within limitation. As the defendant has admitted liability in e
mail communication and he did not come forward to oppose the claim
of the plaintiff, unrebutted documentary and oral evidence of the
plaintiff is liable to be taken into account. Accordingly, the plaintiff has
succeeded in establishing his case with the help of oral and
documentary evidence. The plaintiff has also claimed interest at the rate
of 24% on outstanding amount on the strength of clauses in the invoices
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Comm.Suit No. 683/21. 5 Ex-parte Judgment (Exh.14).
and it is liable to be granted on the principal amount till the date of the
suit.
7. So far as pendente lite and post decree interest is
concerned, reasonable reduction in interest rate is necessary. Interest
rate shown in invoices is exorbitant. Interest at the rate of 12% p.a. is
normal rate of interest in commercial transactions and it can be
awarded. Costs of the suit is liable to be imposed on the defendants. In
the light of above discussion, I record my finding as to point no.1 in the
affirmative with reduction in interest rate as discussed above. Hence, I
pass the following order :
ORDER
1. Commercial Suit No. 683/2021 is partly decreed.
2. The defendant is directed to pay amount of
Rs.53,07,491/ (Rupees Fiftythree Lakhs Seven Thousand
Four Hundred Ninetyone Only) to the plaintiff with
interest @ 12% p.a. from the date of the suit till the date of
realization within three months from the date of decree.
3. The defendant shall bear the costs of the suit.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 08/12/2021. Mumbai.
1. Dictated online on : 08/12/2021.
2. Signed on : 08/12/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 683/21. 6 Ex-parte Judgment (Exh.14).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/12/2021. 12.46 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 08/12/2021.
Judgment/Order signed by P.O. on 08/12/2021.
Judgment/Order uploaded on 09/12/2021.
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