Final Order 1

Order Details: Ex-parte Judgement
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MHCC010060822018 Presented on : 04-05-2018
Registered on : 14-05-2018
Decided on : 06-10-2021
Duration : Y M D
03 04 22
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.946 OF 2021
(S.C.SUIT NO.2907 OF 2018)
Ex.05
Vimal Papers Pvt. Ltd. ]
Through its DirectorMr.Dinesh Vanveer ]
Gada, Age adult, having registered office: ]
405, Shop Zone, M.G.Road, Near Bank ]
of India, Ghatkopar(West), Mumbai400 067. ] ..Plaintiff
Versus
1. Shri Ram Krupa Paper Mills, ]
A proprietorship concern owned by ]
Mr. Hamanshu Chhabildas Patel ]
SurendranagarLakhtar Highway, ]
Lakhtar, TalukaWadhwan, ]
Dist.Surendranagar363 030 ]
2. Himanshu Patel Son of Chhabildas Patel ]
Ageadult, Occ.: Business, ]
Prop. of Shri Ram Krupa Paper Mills, ]
SurendranagarLakhtar Highway, ]
Lakhtar, TalukaWadhwan, ]
Dist.Surendranagar363 030 ] ..Defendants
_____________________________________________________
Ld. Advocate Nitesh Acharya for plaintiff.
DefendantsEx parte.
______________________________________________________
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JUDGMENT
(Dated this 06th day of October, 2021.)
1. Suit is for recovery of an amount of Rs.38,13,245/
alongwith future interest.
2. Briefly stated, plaintiff's case, is as under:
Plaintiff company does the business of purchase and
supply of waste papers. Defendant No.1 is a proprietorship
concern. Defendant No.2Himanshu Patel is the proprietor of
defendant No.1. Plaintiff company supplied waste papers to
defendants during the period from 11/02/2018 to 26/03/2018.
Plaintiff company supplied goods of worth Rs.38,13,245/to
defendants. Towards the part payment of supplied goods,
defendants issued two cheques dated 26/02/2018, but, those
cheques were dishonoured. Defendants also issued posted dated
cheques towards the goods supplied by plaintiff company.
However, defendant No.2 requested plaintiff not to deposit those
cheques in bank accounts as defendant's bank account was not
having sufficient balance to honour those cheques. As per
defendants' request, plaintiff company did not deposit those
cheques for encashment. Plaintiff came to know that defendant
no.2 is trying to sell the paper mill. If defendant no.2 succeed to
sell the paper mill, plaintiff company will not be able to recover
the outstanding amount. By making all these submissions,
plaintiff prayed for decree for the amount of Rs.38,13,245/
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alongwith future interest and attachment & sale of property
belonging to defendants.
3. As per Service Affidavit (Ex.2), defendant Nos.1 & 2
were deemed to be served with writ of summons. But, they failed
to tender their appearance before the Court and therefore suit
proceeded exparte against defendants.
4. Heard Ld. advocate for plaintiff.
5. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff prove that an
amount of Rs.38,13,245/is
outstanding against the defendants?
Proved
2. What order? Suit is partly decreed
as per final order.
REASONS
Point No.1
6. In order to substantiate the claim, plaintiff company
filed evidence affidavit of PW1 Dinesh Vanveer Gada at Ex.3.
Plaintiff company also relied upon documents filed at Ex.4. PW1
Dinesh Gada testified all the facts pleaded in the plaint. He
deposed that goods of worth Rs.38,13,245/ were supplied to
defendants and accordingly invoices were raised. Defendants also
issued cheques towards supplied goods. Those cheques were not
deposited as per defendants' request.
7. The oral evidence of PW1 Dinesh Gada is well
supported by documents filed under list Ex.4. The documents
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filed below Ex.4, show that at the time of supply of goods,
plaintiff company raised invoices and towards the supplied goods,
defendants issued post dated cheques. Thus, the oral evidence of
PW1 Dinesh Gada lends requisite support from documents filed
on record. As stated above, suit proceeded exparte and therefore
oral evidence and documentary evidence remain unrebutted.
From the material produced on record, it can be safely inferred
that an amount of Rs.38,13,245/ was outstanding against
defendants. Point No.1 is answered accordingly.
8. Plaintiff company also claimed decree regarding
attachment and sale of property, but, plaintiff has not filed on
record particulars of property belonging to defendants. Plaint
does not contain description of property sufficient to identity it.
Therefore, plaintiff is not entitled to attachment of property of
defendants. However, plaintiff is entitled to the decree of an
amount of Rs.38,13,245/. Plaintiff claimed interest at the rate of
18% p.a. Present transaction is a commercial transaction, and
therefore plaintiff is entitled to get interest as claimed for. In the
result, following order:
ORDER
1. Suit is partly decreed with costs.
2. Defendants shall pay an amount of Rs.38,13,245/
(Rs. Thirty Eight Lacs Thirteen Thousand Two Hundred
and Forty Five)alongwith interest @ 18 percent p.a. to
plaintiff from the date of filing of suit till it's realization
within two months.
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3. Court fees be refunded as per (E) Rules framed
under Section 11(2) of the Bombay City Civil Court Act,
1948, for the refund of Institution Fee.
4. Decree thus follow.
06/10/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 06/10/2021
Transcribed on : 06/10/2021
Signed on : 06/10/2021
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
06/10/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 06/10/21
Judgment and order signed by P.O. 06/10/21
Judgment/order uploaded on 06/10/21
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