Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010059712019 Presented on 15-06-2019
Registered on 02-08-2019
Decided on 21-12-2023
Duration 04Y: 06M: 06D
Exhibit 29
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 771 OF 2019
Jeevandeep Edumedia Pvt. Ltd. ]
Having registered office at ]
Sun Paradise Business Plaza, ]
First Floor, Senapati Bapat Marg, ]
Lower Parel, Mumbai 400 013. ]
Through its Assistant Manager Legal ]
Mrs. Neha Nachiket Kulkarni ]
Age: 28 years, Occupation: Service ]...Plaintiff
V/s.
1. Mr. Prem B. Gavande (Principal) ]
Age: 40 years; Occp: Not known ]
Tal: Kalamnuri, Dist: Hingoli, ]
At & Post: Dongarkada 431 701 ]
Maharashtra.
2. Dnyandeep English School ]
Tal. Kalamnuri, Dist: Hingoli, ]
At & Post: Dongarkada 431 701 ]
Maharashtra. ]...Defendants
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Appearance :
Ld. Adv. Hetal Vakil for the plaintiff.
Defendants absent (Ex-parte)
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 21/12/2023.
JUDGMENT
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.99,851/-.
Brief facts of the plaintiff’s case may be summarized as under:
2] The plaintiff is the registered company incorporated
under the Companies Act, 1956. The plaintiff carries on the business
as Educational Publishers under the name and style of ‘Jeevandeep
Edumedia Private Limited’ and it was previously known as ‘Jeevandeep
Prakashan Private Limited’.
3] In pursuance of the orders placed from time to time by
the defendants, the plaintiff has sold, supplied and delivered to the
defendants the goods through delivery challan and it was
acknowledged by the defendants without any protest for the quality
and quantity.
4] According to the plaintiff, it had raised the invoices on the
defendants in respect of the goods delivered to the defendants, and
those are following 4 invoices.
1) Invoice No. PT 66203 dated 30/06/2016 for the amount
of Rs.63,378/-,
2) Invoice No. PT 66854 dated 06/07/2016 for the amount
of Rs.37,772/-.
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3) Invoice No. PT 70512 dated 22/08/2016 for the amount
of Rs. 7,431/-, and
4) Invoice No. PT 70804, dated 16/09/2016 for the amount
of Rs.5,689/-.
5] According to the plaintiff, opening balance was
Rs.33,046/- and as such, it has supplied the goods for the total amount
of Rs.1,47,316/-. After a lot of persuasion and follow up, defendant
made part payment on 11-07-2016 for the sum of Rs.33,046, on
14-09-2017 for the sum of Rs.10,000/-, on 12-11-2018 for the sum of
Rs.30,000 and credit note was raised vide Credit Note No. PD 61153
dated 15-11-2016 for the sum of Rs.8,162/-, totaling to Rs.66,108/-.
As per terms and condition as agreed, the plaintiff is entitled to charge
interest @ Rs.18% p.a. from due date till date. Therefore, due and
payable amount was Rs.99,851/-.
6] It is contended by the plaintiff that despite of several
request, the defendants failed to make the payment and therefore,
lastly a legal notice dated 25/02/2019 through the advocate was
issued and served it on 26/02/2019 by Regd. A. D. Post and ordinary
post on the defendant No.2. Despite the receipt of the said legal
notice, the defendants have not complied with the said notice and
even not replied and therefore, the plaintiff constrained to file the
present suit.
7] The defendant were served with the writ of summons.
The plaintiff has filed affidavit of service at Exh.5. Despite the service,
the defendants have not caused appearance and therefore, the suit
proceeded ex-parte against them by the order dated 21-01-2020.
8] In support of claim, the plaintiff filed its affidavit of claim
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of Ms. Hima Gosalia, Legal Executive of plaintiff at Exh.6 and
reiterated her contention for recovery of Rs.99,851/- along with the
further interest at the rate of Rs.18% p.a. on Rs.66,108/-. The plaintiff
has filed and relied upon the following documents.
Sr.
No. Exhibits Particulars
1 Exh.8 Copy of Board Resolution dated 25/02/2019
2 Exh.9 Copy of Board Resolution dated 03/02/2020
3 Exh.10 Original Purchase Order dated 22/06/2016
4 Exh.11 Original Purchase Order dated 01/07/2016
5 Exh.12 Original Purchase Order dated 13/09/2016
6 Exh.13 Original Purchase Order dated 18/08/2016
7 Exh.14 Original L. R. dated 30/06/2016
8 Exh.15 Original L. R. dated 05/07/2016
9 Exh.16 Original L. R. dated 20/08/2016
10 Exh.17 Original L. R. dated 14/09/2016
11 Exh.18 Copy of Invoice dated 30/06/2016
12 Exh.19 Copy of Invoice dated 06/07/2016
13 Exh.20 Copy of Invoice dated 22/08/2016
14 Exh.21 Copy of Invoice dated 16/09/2016
15 Exh.22 Copy of Credit note dated 15/11/2016
16 Exh.23 Office copy of Notice dated 25/02/2019
17 Exh.24 Original Postal Receipt dated 26/02/2019
18 Exh.25 Original Postal Track Report
9] To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.99,851/-
-Partly yes-
Entitled to Rs.33,062/- with
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from the defendant?
If yes, at what rate of interest?
interest at the rate of Rs.9%
p.a. from 15-06-2019 till the
date of passing the decree
and then @ Rs.6% p.a. from
the date of the decree till its
full realization.
2. What order and decree? As per final order.
REASONS
As to Points No.1 & 2:
10] The plaintiff has filed his claim affidavit in support of
the case set out in the plaint at Exh.6 and also placed on record
some documents as referred to above. Evidence on affidavit placed
on record by the plaintiff supports to its case that the defendant had
placed an orders time to time with the plaintiff for purchasing the
goods, and in accordance with those 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 the plaintiff had raised the invoices for the
total amount of Rs.1,14,270/-. Thereafter, defendant made part
payment of Rs.73,046/- and credit note was issued for the amount of
Rs.8,162/- and therefore due balance amount amount was
Rs.33,062/-.
11] However, it must be observed that evidence of the
plaintiff in this respect remained unrebutted and unchallenged.
Therefore, there is no reason to disbelieve the evidence of the
plaintiff particularly when it is supported by the documents.
Furthermore, in view of provision of Rule 2 (3), order XXXVII of
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CPC, owing to failure of the defendant to appear, it needs to be
presumed that the defendant admit the contents and the allegations
contained in the plaint. It is also found that the plaintiff had issued
the legal notice dated 25-02-2019 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. It is important to note that present
summary suit is based on four invoices. However, the plaintiff has
also added Rs.33,046/- in the outstanding amount as previous
balance. No invoice is placed on record in respect of previous
balance of Rs.33,046/-. Therefore, claim for the amount
Rs.33,046/- included in the invoices amount cannot be said to be
tenable. Therefore, I hold that balance outstanding was not
Rs.66,108/-, but it was Rs.33,062/-. Therefore, I hold that the
plaintiff has proved that it is entitled to recover the amount of
Rs.33,062/- which is the balance outstanding amount.
12] It may be seen that the plaintiff has claimed the interest
at the rate of Rs.18% p.a. on the amount of Rs.66,108/- as shown
in the particular of claim. However, it is important to note that
there appears no agreement to pay the interest on the outstanding
amount. Mere note on invoices in respect granting interest at a
particular rate cannot be termed as a agreed condition and such a
condition can not be said to have binding effect on the defendant.
Therefore, I hold that the plaintiff is not entitled to any interest till
filing the suit. But the transaction between the plaintiff and the
defendants was of the commercial in nature and therefore, because
of making default by the defendant despite calling upon them to
pay the outstanding amount, I am of the view that the plaintiff can
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be made entitled and 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 15-06-
2019 till passing the decree, and then @ Rs.6% p.a. from the date of
decree 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.771 of 2019 is partly decreed with costs.
2] The defendant shall pay the amount of Rs.33,062/- (Rupees
Thirty Three Thousands and Sixty Two only) to the plaintiff
along with interest at the rate of Rs.9% p.a. from 15-06-2019 till
the date of passing the decree and then @ Rs.6% p.a. from the
date of the decree till its full realization.
3] The plaintiff is entitled to get refund 2/3rd of the court fees
amount be paid by it.
4] The decree shall be drawn accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 21-12-2023 Court Room No.61
Dictated on : 21-12-2023
Corrected & Signed on : 22-12-2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26-12-2023 at 4.00 p.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
21-12-2023
JUDGMENT/ORDER signed by P. O. on 22-12-2023
JUDGMENT/ORDER uploaded on 26-12-2023
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