Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: S.J. No.149/2018 in Summary Suit No.138/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 149 OF 2018
CNR NO.: MHCC010057802018
IN
SUMMARY SUIT NO. 138 OF 2018
GURU STEEL & ENGINEERING CO, a firm
carrying on business from Shop No.24/28, Ground
Floor, 1st Pathan Street, 4th Kumbharwada, Mumbai
400 004 through its Proprietor Mr. Mafaram J.
Choudhary, age 40 years, of Bombay Indian
Inhabitant, residing at 508, 5th floor, Swami Samarth
Darshan Bldg., 50/60, Sant Sena Maharaj Marg, 2nd
Kumbharwada, Mumbai – 400 004. ...Plaintiff
Versus
Blu Engineers Pvt. Ltd., a company incorporated
under the provisions of The Companies Act, 1956,
having its registered office at Plot No.48, Shakti
Nagar, Arunodaya Market, Cuttack – 753012 and also
carrying on business at Holding 730/1, Block No.
48, Arunodaya Market, Cuttack, Odisha 753012. ...Defendant.
Appearances:
Advocate Mr. Prashant Chande for the plaintiff.
None for the defendant.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 7th JUNE, 2019.
O R A L O R D E R
Story of plaintiff in short is as under :
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1. Plaintiff has stated that the plaintiff is a proprietary firm carrying
on business from the address mentioned against its name in the cause
title above. Mr. Mafaram J. Choudhary, is its proprietor residing at the
address mentioned against his name in the cause title of the Plaint
above.
2. Plaintiff has further stated that the defendant had placed orders
with the plaintiff for various goods like S.S. Steel 304 and 202 of
various sizes, quality and quantity etc. (herein after referred to as “the
goods”). It was agreed that the payment for the price of the said goods
was to be made by the defendant within one week of dispatch of goods
by the plaintiff. The defendant had agreed to pay interest at the rate of
24% p.a. for overdue period.
3. Plaintiff has further stated that the defendant sent its two EWay
bills in respect of the said goods to be supplied by the plaintiff to the
defendant, issued by the Govt. of Odisha, the details whereof are as
follows :
Sr. NO. EWAY BILL NO. DATE AMOUNT
1. 21 W15167645498 14.08.2015 3,64,098.00
2. 21 W15204298236 02.10.2015 2,90,945.00
TOTAL 6,55,043.00
4. Plaintiff has further stated that as per the order and instructions
of the defendant, the plaintiff sold, supplied and delivered to the
defendant the ordered goods at the mutually agreed rates of the value
of Rs.6,55,043/. The defendant has accepted the said goods and have
never raised any objection as regards the quality, quantity, or price of
the said goods.
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5. Plaintiff has further stated that the plaintiff raised upon and
submitted to the defendant its invoices for the price of the said goods,
the particulars whereof are as follows:
SR. NO. INOVICE NO. DATE AMOUNT
1. 357 14.08.2015 Rs.3,64,098.00
2. 503 02.10.2015 Rs.2,90,945.00
TOTAL Rs.6,55,043.00
6. Plaintiff has further stated that the term pertaining to the credit
period and the rate of interest is incorporated on the invoices submitted
by the plaintiff to the defendants. The defendants have never raised
dispute regarding the said terms and conditions. The defendant has
accepted the goods subject to the said terms and conditions. Even
otherwise the defendant is bound and liable to pay to the plaintiff,
interest under the provisions of The Sales of Goods Act. The defendant
has also submitted to the Plaintiff “C” forms in respect of the sale of said
goods. The particulars of the “C” Forms issued by the defendant for the
sale of the said goods are as follows:
Sr.
No.
Invoice No. C Form No. C Form Date
1. 357 21C16003306834 10.02.2016
2. 503 21C16006383318 08.03.2016
The details of the Eway bills, their respective invoices and their
respective C Forms are as follows :
Sr.
No.
Eway Bill No. Invoice
No.
Invoice
Date
Invoice
Amount
C Form
No.
Exhibit
No.
1 21W
15167645498
357 14.08.15 Rs.3,64,
098.00
21C
1600330
6834
“A”, “A
1” and
“A2”
2 21W 503 02.10.15 Rs.2,90, 21 “B”, “B
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15204298236 945.00 C160063
83318
1” and
“B2”
7. The defendant did not make the payment of the price of the
goods on the due date of invoices or thereafter. The plaintiff has time
and again demanded from the defendant and called upon the defendant
to pay the price of the said goods and all accrued interest thereon. The
defendant has confirmed the amount due and has further promised and
agreed to pay to the plaintiff the amount due on various occasions. The
defendant has pleaded its financial difficulties and has requested the
plaintiff to bear with the defendant for some time. The defendant has
however, failed and neglected to pay to the plaintiff the amount due or
any interest accrued due thereon. The defendant has merely kept the
plaintiff on false promises and assurances.
8. Plaintiff has further stated that thereafter towards the discharge
of debt and liability for the price of the said goods and the said invoices,
the defendant issued in favour of and delivered to the plaintiff its
cheques. The plaintiff presented the said cheques for realization in its
bank. The cheques were returned dishonored by the bankers of the
defendant for the reasons mentioned in the table.
Sr.
No.
Cheque
No.
Date Amount Drawn
on
Reason for
dishonour
Memo of
Dishonour
Date
1. 437161 07.11.15 3,64,098 Indian
Overseas
Bank
Exceeds
Arrangements
30.12.2015
2. 480365 30.04.16 2,90,945 ICICI
Bank
Funds
Insufficient
03.05.2016
9. Plaintiff has further stated that thereafter, the defendant once
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again towards the part discharge of its debt and liability towards the
part payment of the price of the goods issued one more cheque in
favour of plaintiff. When the plaintiff presented the said cheque in its
bank for payment the same was also dishonored by the bankers of the
defendant. The particulars of the dishonored cheque are as follows:
Sr.
No.
Cheque
No.
Date Amount Drawn
on
Reason for
Dishonour
Memo of
Dishonour
1. 00811 05.08.2017 50,000 HDFC
Bank
PAYMENT
STOPPED
BY
DRAWER
05.08.2017
10. Plaintiff has further stated that thereafter through his Advocate
issued notice dated 06.09.2017 dispatched by R.P.A.D., putting some of
the aforesaid facts on record and called upon the defendant to pay to
the plaintiff, a sum of Rs.50,000/ being the amount of dishonored
Cheque dated 05.08.2017 above. By the said Notice the plaintiff also
demanded from the defendant a sum of Rs.6,05,043.00 being the
balance price of the goods sold to the defendant under the aforesaid
invoices, with all accrued interest at the rate of 24% p.a. from the due
date of the invoices. Plaintiff has further stated that the defendant No.1
is liable to pay to the plaintiff overdue interest at the rate of 24% per
annum. The said amount of interest from the due date of the invoices
date of dispatch till the date of the filing of the suit on sum of
Rs.6,05,043/ amounts to Rs.3,44,408. Plaintiff has further stated that
the said rate of the said rate of interest is contractual and agreed rate
of interest.
11. Plaintiff has further stated that in the premises aforesaid, there is
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now due and payable by the defendant to the plaintiff a sum of
Rs.9,99,451/ from the due date of the invoices/ date of dispatch till the
date of the filing of the suit as per the particulars of claim. Therefore,
plaintiff filed this suit.
12. Defendant appeared in the suit. Thereafter, plaintiff taken out
this Summons for Judgment and served with on defendant. It appears
defendant failed to file reply or file application for leave to defend to
Summons for Judgment. Therefore, plaintiff is entitled to get judgment
and decree as per Order XXXVII Rule (3) subrule 6, sub rule (a) of the
Code of Civil Procedure, 1908. Plaintiff has produced all the
corroborating documents with his allegations in the plaint which are
Photo copy of Power of Attorney, EWay Bills, Invoices, “C” Forms,
Dishonoured Cheques, Memo, Office copy of the Notice and A.D. Card.
Plaintiff has also adduced claim affidavit to show liability of the
defendant. From all the documents produced on record and the
averment in the plaint and affidavit of claim plaintiff has shown that it
is entitled to get sum of Rs.9,99,451/ from the defendant.
13. It appears that as per Section 34 of the Code of Civil Procedure, it
will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.6,05,043/ from the date of filing of the suit till its
realisation. Hence, following Order:
ORDER
1. Summons for Judgment No.149/2018 is made absolute.
2. It is hereby ordered and decreed that :
(i) Defendant is directed to pay sum of Rs.9,99,451/ to plaintiff
alongwith interest @ 9% p.a. on the sum of Rs.6,05,043/ from
the date filing of the suit till its realisation.
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(ii) Defendant shall bear the cost of plaintiff at their own.
(iii) Plaintiff is entitled for refund of Court fee as per rules.
(iv) Decree be drawn accordingly.
(v) Summary Suit No.138/2018 stands disposed of.
(S.P. AGARWAL)
Judge,
Date: 07.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 07.06.2019
Transcribed on : 07.06.2019
Signed on : 07.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.06.2019 At 4:37 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
07.06.2019
Judgment/Order signed by P.O. on 07.06.2019
Judgment/Order uploaded on 11.06.2019
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