Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Commercial Suit No.37/2019
Received on : 11.06.2019
Registered on : 25.06.2019
Decided on : 02.01.2020
Duration : Y M D
00 06 22
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 37 OF 2019
CNR NO.: MHCC010057362019
MR. SUJEN CHANDRAVADAN SHAH ]
PROPRIETOR ]
MERIT INTERNATIONAL ]
EDEN IV, B103, HIRANANDANI GARDENS ]
POWAI, MUMBAI – 400 076 ]
Tel:022 40150081/84/21661894 ]
Email:meritasia2@gmail.com ]
GSTIN/UIN:27AAZPS4519H1ZY ]...Plaintiff
Versus
1. MAITRAY NANO INDUSTRIES ]
PLOT NO.7828, 4/5, OPP. DHIRAJ CAN, ]
GIDC ESTATE, ANKLESHWAR, BHARUCH ]
GUJARAT – 393002 ]
GSTIN/UIN : 24AAPFM8961K2ZJ ]
Mobile : 9426947766 ]
2. MR. SANJAY VINUBHAI LIMBASIYA ]
PARTNER ]
MAITRY NANO INDUSTRIES ]
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PLOT NO.7828, 4/5, OPP. DHIRAJ CAN, ]
GIDC ESTATE, ANKLESHWAR, BHARUCH ]
GUJARAT – 393002 ]
GSTIN/UIN :24AAPFM8961K2ZJ ]
Mobile : 9426947766 ]
3. MR. RESHMIN GORDHANBHAI RAMANI ]
PARTNER ]
MAITRY NANO INDUSTRIES ]
PLOT NO.7828, 4/5, OPP. DHIRAJ CAN, ]
GIDC ESTATE, ANKLESHWAR, BHARUCH ]
GUJARAT – 393002 ]
GSTIN/UIN :24AAPFM8961K2ZJ ]
Mobile : 9426947766 ] ...Defendants
Appearances:
Advocate Mr. K. M. Nair for the plaintiff.
None for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 2nd JANUARY, 2020.
[ J U D G M E N T ]
Plaintiff has filed present suit for recovery of Rs.6,15,531/ from
defendants.
Allegations of plaintiff in short are as under:
2. The plaintiff is a Proprietor of his firm Merit International having
its office at Eden IV, B103 Hiranandani Gardens, Powai, Mumbai – 400
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076 and also having office at F189, First Floor, Dreams the Mall, Near
Bhandup Railway Station, Bhandup West, Mumbai – 400078.
3. Defendant No.1 is a Partnership Firm as per the information
available with the GST Website and the defendant Nos. 2 and 3 are the
partners of the defendant No.1 firm Maitry Nano Industries all having
their address at Maitry Nano Industries Plot No.7828, 4/5, Opp. Dhiraj
Can, GIDC Estate, Ankleshwar Bharuch Gujarat – 393002 and the
defendants Goods and Service Tax No. is GSTIN/UIN :
24AAPFM8961K2ZJ.
4. Plaintiff has further stated that defendants approached the
plaintiffs during first week of December, 2017 and introduced
themselves as traders in pharmaceuticals items and Chemicals and
showed interest in buying their products and accordingly placed
Purchase Order No.MNI/PUR/1718/15 dated 08.12.2017 signed by the
defendant No.2 the said Purchase Order was sent through email
Attachment vide their email address maitrynano@yahoo.in to their
email address meritasia4@gmail.com for supply of R(+) PHENYL
ETHYL AMINE 380 kgs @ Rs.1,140.00 per Kg plus GST to be delivered
to their address mentioned in the cause title.
5. Plaintiff has further stated that plaintiffs dispatched the above
said goods R(+) ALPHAPHENYL ETHYL AMINE 380 kg @ Rs.1,140.00
+ IGST vide their Tax Invoice No.20 dated 04.01.2018 vide Bhavna
Roadways CC NO.3565064 dated 09.01.2018 for Rs.5,11,176.00 as per
the Tax Invoice payment term is 30 days and the payment was due on
05.02.2018.
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6. Plaintiff has further stated that the defendants as per their
purchase order dated 08.12.2018 terms and condition No.2 was
suppose to issue a post dated cheque after receipt of the Goods.
However failed to honour their commitment and did not make the
above payment on the due date of 05.02.2018 and plaintiffs thereafter
reminded the defendants about their above said payments vide phone
calls, emails and letters.
7. Plaintiff has further stated that the plaintiffs debited the Account
of the defendants after the goods are delivered. Plaintiff has further
stated that the defendants informed the plaintiffs when the plaintiffs
called the defendant No.1 that he will issue demand draft of
Rs.5,11,176.00 by 30.05.2018. However the defendant failed to send
the said demand draft.
8. Plaintiff has further stated that the plaintiffs thereafter issued a
legal Notice to the defendants through their Advocate Shri. G. Krishna
Mohan Nair dated 15.06.2018 calling upon the defendants to pay
Rs.5,38,013.00 including principal amount of Rs.5,11,176.00 and
interest of Rs.26,837.00 which notice was served on the defendants on
20.06.2018 as per Internet Tracking Information. The defendants failed
to repay money, therefore, plaintiff filed this suit.
9. Defendant Nos. 1 to 3 failed to appear and file Written
Statement, therefore, Suit has proceeded exparte against defendant
Nos. 1 to 3.
10. Heard the Ld. Advocate for the plaintiff.
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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
recover Rs.6,15,531/ from
defendants alongwith interest @ 21%
p. a. on Rs.5,11,176/ 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
AS TO POINT NOS. 1 AND 2:
12. Plaintiff has filed evidence affidavit of Proprietor of plaintiff
PW1 Sujen Chandravadan Shah below Exh.5. He has stated in his
evidence affidavit that he is the Sole Proprietor of the firm Merit
International having its office at Eden IV, B103 Hiranandani Gardens,
Powai, Mumbai – 400 076 and also having office at F189, First Floor,
Dreams the Mall, Near Bhandup Railway Station, Bhandup West,
Mumbai – 400078.
13. PW1 Sujen Chandravadan Shah has further stated that since he
is the Proprietor of Merit International he is well aware of the facts of
the matter and he filed the above Commercial suit and he is personally
involved in all the transactions with the defendants.
14. He has further stated that defendant No.1 Maitry Nano
Industries is a Partnership Firm and defendant No.2 Mr. Sanjay
Vinubhai Limbasiya and defendant No.3 Mr. Rashmin Gordhanbhai
Ramani are partners of defendant No.1 all defendants are having their
address at Maitry Nano Industries Plot No.7828, 4/5, Opp. Dhiraj Can,
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GIDC Estate, Ankleshwar Bharuch Gujarat– 393002 and the defendants
Goods and Service Tax No. is GSTIN/UIN :24AAPFM8961K2ZJ.
15. He has further stated that the plaintiffs are the leading traders in
Pharmaceutical ingredients and Chemical items and the plaintiffs are
also having Certificate of ImporterExporter Code (IEC). The plaintiffs
PAN No. is AAZPS4519H.
16. He has further stated that defendants approached the plaintiffs
during first week of December, 2017 and introduced themselves as
traders in pharmaceuticals items and Chemicals and showed interest in
buying their products and accordingly placed Purchase Order
No.MNI/PUR/1718/15 dated 08.12.2017 signed by the defendant No.2
the said Purchase Order was sent through email Attachment vide their
email address maitrynano@yahoo.in to their email address
meritasia4@gmail.com for supply of R(+) PHENYL ETHYL AMINE 380
kgs @ Rs.1,140.00 per Kg plus GST to be delivered to their address
mentioned in the cause title.
17. He has further stated that plaintiffs dispatched the above said
goods R(+) ALPHAPHENYL ETHYL AMINE 380 kg @ Rs.1,140.00 +
IGST vide their Tax Invoice No.20 dated 04.01.2018 vide Bhavna
Roadways CC NO.3565064 dated 09.01.2018 for Rs.5,11,176.00 as per
the Tax Invoice payment term is 30 days and the payment was due on
05.02.2018.
18. He has further stated that defendants as per their purchase order
dated 08.12.2018 terms and condition No.2 was suppose to issue a post
dated cheque after receipt of the Goods. However failed to honour their
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commitment and did not make the above payment on the due date of
05.02.2018 and plaintiffs thereafter reminded the defendants about
their above said payments vide phone calls, emails and letters.
19. He has further stated that plaintiffs debited the Account of the
defendants after the goods are delivered. He has further stated that the
defendants informed the plaintiffs when the plaintiffs called the
defendant No.1 that he will issue demand draft of Rs.5,11,176.00 by
30.05.2018. However the defendant failed to send the said demand
draft.
20. He has further stated that plaintiffs thereafter issued a legal
Notice to the defendants through their Advocate Shri. G. Krishna Mohan
Nair dated 15.06.2018 calling upon the defendants to pay
Rs.5,38,013.00 including principal amount of Rs.5,11,176.00 and
interest of Rs.26,837.00 which notice was served on the defendants on
20.06.2018 as per Internet Tracking Information. But the defendants
neither paid nor replied the said Notice.
21. He has further stated that the plaintiffs say that even though the
said period of four weeks stated in the Legal Notice expired the
defendants did not make any payments to the plaintiffs. The plaintiffs
say that they several times demanded the said amounts due to them
verbally and through reminders. The defendants requested the plaintiffs
to wait for some more time and they will clear the dues with interest.
22. Plaintiff has adduced documents which are certificate dated
20.12.2018 proof of plaintiff proprietor, which is original duly verified
by the Bank Saraswat Cooperative Bank Ltd., proof of defendants
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details obtained from GST Website printed in his computer alongwith
certificate under Section 65(B) of Evidence Act, True copy of Pan Card
of the plaintiff, true copy of certificate of ImporterExporter dated 5 th
August, 2005 being proof of his proprietorship firm Merit International,
Original print out taken from his Computer alongwith original print out
of email attachment of purchase order dated 8th December, 2017 of the
defendants received in his computer alongwith certificate U/s. 65B(4)
of the Evidence Act, Original Tax Invoice No.20 dated 4th January 2018
of the plaintiff which is in his possession, Original consigner copy of
Bhavana Roadways CC No:3565064 dated 9th January 2018 being proof
of materials delivered to the defendants, Email correspondence with the
defendants taken from his computer alongwith certificate U/s. 65B(4)
of Evidence Act, Original print out of Ledger of the defendants taken
out in his computer alongwith certificate U/s. 65B (4) of Evidence Act,
Original Legal Notice dated 15.06.2018 issued by his Advocate Shri G
Krishna Mohan Nair to he defendants being his office, Original postal
receipts No. RM130690196IN and RM130690315IN dated 15th June
2018 being proof of legal Notice sent to the defendants, Original Print
out taken from his computer regarding the legal notice dated 15th June,
2018 delivered to the defendants on 20th June 2018, Original print out
taken from his computer regarding the legal notice dated 15th June,
2018 delivered to the defendants on 20th June 2018 and original
particulars of claim of the plaintiffs which corroborates with the oral
evidence.
23. Defendants have failed to file Written Statement and lead
evidence. Therefore, all the allegations of plaintiff have remained
unchallenged. Oral evidence of plaintiff is corroborated by documentary
evidence. It proves that plaintiff is entitled to get amount of
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Rs.6,15,531/ from all defendants jointly and severally.
24. This is a transaction out of trade. It appears that as per Section
34 of the Code of Civil Procedure 1908, it will be proper to direct
defendants to pay interest at the rate of 11% p.a. on the principal
amount of Rs.5,11,176/ 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 to 3 are jointly and severally directed to pay
amount of Rs.6,15,531/ to plaintiff along with interest at the rate
of 11% p.a. on the principal sum of Rs.5,11,176/ from the date of
filing of the suit till its realisation.
3. Decree be drawn accordingly.
(SONALI P. AGARWAL)
Judge,
Date: 02.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 02.01.2020
Transcribed on : 02.01.2020
Signed on : 02.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
04.01.2020 At 3:03 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
02.01.2020
Judgment/Order signed by P.O. on 02.01.2020
Judgment/Order uploaded on 04.01.2020
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