Final Order 1

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MHCC010126502018
Presented on : 04/10/2018
Registered on : 04/10/2018
Decided on : 29/11/2021
Duration : Y M D
03 01 25
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
SUMMONS FOR JUDGMENT NO.293 OF 2018
IN
COMMERCIAL SUIT NO.672 OF 2021
(SUMMARY SUIT NO.584 OF 2018)
M/s. B.D. Impex Pvt. Ltd.,
A Company incorporated under the
Companies Act, 1956 and having its
Office at 207, Bharat Chambers,
12C, Baroda Street, Masjid,
Mumbai400 009.
And also at
109/110, Abhishek, 1st floor,
Plot No.C5, Dalia Industrial Estate
Off New Link Road, Andheri (W)
Mumbai400 053. ..Plaintiff
V/s.
Mr.Vitthal Akkar,
Adult, Sole proprietor of
M/s. V.K.Enterprises
having its address at M2/1, MIDC,
Walunj, Aurangabad431136.
AND
1st floor, Shree Sai Complex,
Near Bus Stand, Jalna431 203. ..Defendant
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__________________________________________________
Ld. Advocate Manoj Agre for plaintiff.
Ld. Advocate M.J. Bangar for defendant.
______________________________________________________
ORAL ORDER
(Dated this 29th day of November 2021)
1. Summons for Judgment is taken out for decree of an
amount of Rs.20,51,248/ alongwith interest.
Briefly stated, plaintiff's case is as under:
2. Plaintiff is a private limited company. Plaintiff
company is dealing in various kinds of steel materials. Defendant
is proprietor of M/s. V.K. Enterprises. In pursuance to the
purchase order placed by defendant, plaintiff company supplied
the steel material to defendant. The particulars of supply of
goods are as under:
SR.
NO.
INVOICE NO DATE OF INVOICE AMOUNT
1. BDI/MUM/423/201415 02/09/2014 Rs.122162/
2. BDI/MUM/549/201415 16/10/2014 Rs.260611/
3. BDI/MUM/555/201415 18/10/2014 Rs.546927/
4. BDI/MUM/650/201415 23/11/2014 Rs.988880/
5. BDI/MUM/690/201415 08/12/2014 Rs.336636/
6. BDI/MUM/701/201415 18/10/2014 Rs.654816/
7. BDI/MUM/756/201415 03/01/2015 Rs.510442/
3. After receipt of the goods, defendant made part
payment of the received goods. As per terms of the invoices,
payment was to be made within 60 days of receipt of goods.
Defendant was liable to pay interest at the rate of 21% p.a. on the
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delayed payment. Defendant issued cheques of Rs.20 lacs
alongwith letter dated 07/11/2015 with the assurance to honour
these cheques. But, defendant failed to honour the same.
4. Defendant was facing financial problems, therefore,
on defendant's request, time was granted for payment of the
outstanding amount. Defendant agreed to pay outstanding
amount by monthly installment of Rs.2 lacs starting from
November 2016. Accordingly, agreement was executed on
10/10/2016. However, defendant failed to pay the outstanding
amount.
5. On 06/12/2016, defendant issued cheque of
Rs.02,60,442/. Said cheque was dishonoured. But, thereafter,
defendant made payment of Rs.2.50 lacs. After giving credit to
the payment made by defendant, an amount of Rs.18,95,774/
was due against defendant. Towards payment of outstanding
amount, defendant issued seven cheques of Rs.18,75,515/. All
these cheques were dishonoured on being presented for
encashment. Plaintiff sent legal notice on 12/12/2017, but,
defendant failed to pay the outstanding amount. Plaintiff submits
that defendant is liable to pay Rs.20,51,248/ alongwith interest
@ 18% p.a. Plaintiff further submits that defendant does not have
any defence, therefore, he prayed to decree the suit.
6. Defendant, by filing his reply affidavit, prayed for
unconditional leave to defend the suit. It is submitted that claim
arises out of regular business transaction between the parties. Suit
claim is made arbitrarily without having regard to the ledger
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account of parties. Parties were having regular commercial
transactions and running account was maintained between the
parties.
7. It is further submitted that out of Rs.60 lacs,
defendant made payment of Rs.41 lacs and balance amount is
only Rs.18 lacs. Defendant issued the cheques by way of security
deposit. The cheques were to be presented on specific
instructions of defendant, however, plaintiff presented all the
cheques on 25/09/2017 without knowledge and consent of
defendant. Therefore, all the cheques were referred by the bank
to the drawer. It is further submitted that accounts can be settled
through mediation. By making these submissions, defendant
prayed for unconditional leave to defend the suit.
8. Ld. Counsel appearing for plaintiff submits that in
pursuance to the purchase orders placed by defendant, plaintiff
has supplied the steel material to defendant. Plaintiff has filed on
record copies of invoices raised against defendant. Defendant did
not dispute the receipt of goods. Defendant has issued the
cheques towards legally enforceable liability. Those cheques were
dishonoured. Defendant is not coming with any defence. By
making these submissions, he prayed to make the Summons for
Judgment absolute.
9. Defendant and his Counsel remained absent for
hearing. Advocate for plaintiff gave intimation regarding hearing
of the case to defendant's advocate. Accordingly, he has also filed
service affidavit on 24/11/2021. Inspite of giving intimation
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about the date of hearing, defendant failed to advance arguments
on Summons for judgment.
10. Record shows that plaintiff has raised invoices
against supply of goods to defendant. The ledger accounts
maintained by plaintiff shows that an amount of Rs.18,95,774/
was outstanding against defendant as on 28/09/2017. Defendant
issued seven cheques of Rs.18,75,515/. In reply affidavit,
defendant admits transaction with plaintiff. Defendant also
submits that approximately an amount of Rs.41 lacs is received by
plaintiff and outstanding amount is Rs.18 lacs. On perusal of
reply affidavit, it is evident that defendant did not dispute receipt
of goods. He is also not disputing about price of the goods,
quantity and quality of goods. Defendant merely states that
cheques were issued towards security and plaintiff deposited
those cheques without intimation to defendant. It is not made it
clear by defendant as to when security was to operate. Once,
defendant admits liability to pay the amount, he cannot avoid his
liability by stating that cheques were issued as a security. From
the reply affidavit, it is clear as crystal that defendant has no
defence for trial. He has not raised any question which require
trial.
11. Plaintiff is claiming interest at the rate of 18% p.a. As
per copies of invoices filed on record, plaintiff was entitled for
21% interest p.a. after due date. However, plaintiff is claiming
interest at the rate of 18% p.a. on Rs.18,75,515/. As per ledger
account, an amount of Rs.18,95,774/ was outstanding as on
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28.09.2017. However, plaintiff is claiming an amount of
Rs.18,75,515/ which is the total of seven cheques issued by
defendant. After calculating interest @ 18% p.a. on
Rs.18,75,515/, the total amount comes to Rs.20,51,248/. As
discussed supra, the fact disclosed in the reply affidavit does not
entitle defendant to defend the suit. Therefore, plaintiff is
entitled for the judgment forthwith. In the result, following
order :
ORDER
1. S/J No.293/2018 is made absolute.
2. Suit is decreed with costs.
3. Defendant shall pay an amount of Rs.20,51,248/ (Rs.
Twenty Lacs, Fifty One Thousand and Two Hundred Forty Eight
Only) along with interest @ 18% p.a. from the date of the suit till
it's realization to plaintiff within two months.
4. Decree thus follow.
29/11/2021 S.U. HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 29/11/2021
Transcribed on : 30/11/2021
Signed on : 30/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
30/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
29/11/21
Judgment and order signed by
P.O.
30/11/21
Judgment/order uploaded on 30/11/21
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