Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010058432018 Presented on 27-04-2018
Registered on 04-07-2019
Decided on 10-07-2023
Duration 05Yrs : 02M:13D
Exhibit 11
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 691 OF 2019
Mr. Dilip Kumar Ramlal Awasti ]
Proprietor of New Excel Wear ]
Having office at Shree Ranuseth SRA ]
Co-Op. Hsg. Society, Building No. 02, ]
Shop No. 2,4,5 & 6, Ground Floor, ]
Khedgally, Dadar (W), Mumbai- 25. ]...Plaintiff
VERSUS
Ms. Seema Jaiwal ]
Proprietor of Global Fashion ]
Having office at UG-9, Mahaveer ]
Empire 63 MG Road, Regal Chouhra, ]
Indore, Madhya Pasdesh - 452001. ]...Defendant
Appearance :
Ld. Advocate Mr. Dalvi h/f. Adv. Sohail Ahmed for the plaintiff.
None for the defendant (Ex-parte).
-- 1 of 7 --
2 Sum Suit No.691/2019.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 10/07/2023.
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of Rs.9,62,172/-
along with interest thereon at the rate of 24% per annum till its
realization. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is having business of selling clothing goods in
the name of ‘ M/s. New Excel Wears’. The defendant is the proprietor of
the ‘Global Fashion’ and also engaged in the business of clothing. The
plaintiff and defendant both are known to each other as both the firm
are engaged in the business of clothing.
3. The defendant approached to the plaintiff for a purchasing
clothes and he placed various purchase orders which are as follows:-
Sr.No. Date Invoice No. Amount
1 24/11/2016 2731 1,43,021/-
2 24/11/2016 2732 1,15,275/-
3 26/11/2016 2736 2,23,236/-
4 26/11/2016 2737 2,62,350/-
5 28/11/2016 2739 1,54,336/-
6 28/01/2017 2830 36,465/-
7 14/03/2017 2866 27,489/-
Total 9,62,172/-
-- 2 of 7 --
3 Sum Suit No.691/2019.
The plaintiff as soon as received the purchase order from the defendant,
he dispatched and delivered the cloths to the defendant. When the
plaintiff approached the defendant for the payment of the said
invoice/bills, the defendant neglected to make payment and given
excuses for one and another reason.
4. According to the plaintiff, he requested the defendant on
several occasions to clear off the outstanding dues. However, the
defendant failed and neglected to pay the amount. Therefore, he issued
the demand notice dated 16-01-2018 through his advocate and called
upon the defendant to pay the amount, but in spite of receipt of notice
on 19-01-2018, the defendant failed to pay the amount. Hence, the
present suit.
5. The defendant was served with the writ of summons.
Despite of service, the defendant has not caused his appearance and
therefore, the suit proceeded ex-parte against him by the order dated
11-08-2022.
6. In support of claim, the plaintiff filed its affidavit of claim
at Exh.5 and reiterated his contention for recovery of Rs.9,62,172/-
along with interest at the rate of 24% p.a. The plaintiff has filed and
relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.7 Copy of ledger account
2 Exh.8 colly. Copies of seven bills/invoices
3 Exh.9 colly. Two original form C, Form of declaration ‘ Central
Sale Tax’.
-- 3 of 7 --
4 Sum Suit No.691/2019.
4 - Legal demand notice dated 16-01-2018
5 - Postal acknowledgment
7. So to decide the present suit, following points arose for my
consideration. I have recorded my findings along with reasons on the
said point as under :-
Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.9,62,172/-
from the defendant?
If yes, at what rate interest?
Partly yes. Plaintiff is
entitled to recover amount
of Rs.9,62,172/- from the
defendant along with
interest at the rate of Rs.9%
p.a. from 27-04-2018 till its
full realization.
2. What order and decree? As per final order.
R E A S O N S
AS TO POINTS NO. 1 & 2:
8. The plaintiff has filed his claim affidavit in support of the
case set out in the plaint at Exh.5 and also placed on record some
documents as referred to above. Evidence on affidavit placed on record
by the plaintiff supports to his case that the defendant had placed an
orders time to time with the plaintiff for purchasing the goods, and in
accordance with the said orders, the plaintiff supplied the goods to the
defendant and the plaintiff had raised the invoices. It appears also from
the evidence of the plaintiff and the documents placed on record that
there were total seven transactions, and accordingly the plaintiff had
-- 4 of 7 --
5 Sum Suit No.691/2019.
raised the invoices. It appears that the plaintiff has also maintained the
account of the defendant, and copy of it is also placed on record. It
suggests that the amount of Rs. 9,62,172/- remained unpaid and it was
towards the invoices described above. It is also found that the plaintiff
had issued the legal notice dated 16/01/2018 through the advocate and
it is duly served on the defendant. Despite of service of the said notice
and calling upon the defendant to clear off the outstanding dues, the
defendant not paid amount. Evidence of the plaintiff remained
unrebutted and unchallenged. Therefore, there is no reason to
disbelieve the evidence of the plaintiff particularly when it is supported
by the documents. Therefore, I hold that the plaintiff has proved that
he is entitled to recover the amount of Rs.9,62,172/-.
9. It may be seen that the plaintiff has claimed the interest at
the rate of Rs.24% p.a. on the principal amount i.e. on the amount of
Rs.9,62,172/-. However, it is important to note that there appears no
agreement to pay the interest on the outstanding amount; but,
transaction between the plaintiff and the defendant was of the
commercial in nature and therefore, because of making default by the
defendant despite of calling upon to pay the outstanding amount, I am
of the view that plaintiff is entitled to the interest. However, the interest
claimed by the plaintiff appears to be excessive, and therefore, I hold
that the plaintiff is entitled to the interest at the rate of Rs.9% p.a. from
the date of filing of the suit i.e. from 27-04-2018 till its full realization
and accordingly I answer point No.1. In the result, in an answer to
point No.2, I proceed to pass the following order.
O R D E R
1] The Summary suit No. 691 of 2019 is partly decreed with costs.
2] The defendant shall pay the amount of Rs.9,62,172/- (Rupees
-- 5 of 7 --
6 Sum Suit No.691/2019.
Nine Lakhs Sixty Two Thousand One Hundred and Seventy Two
only) to the plaintiff along with interest at the rate of Rs.9% p.a.
from 27-04-2018 till its full realization.
3] The plaintiff is entitled to get refund 2/3rd court fees paid by him.
4] Decree shall be drawn accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 10-07-2023 Court Room No.61
Dictated on : 10-07-2023
Corrected & signed on : 11-07-2023
-- 6 of 7 --
7 Sum Suit No.691/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11-07-2023 at 11.30a.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
10-07-2023
JUDGMENT/ORDER signed by P. O. on 11-07-2023
JUDGMENT/ORDER uploaded on 11-07-2023
-- 7 of 7 --