Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010061412018
Filed on :04.05.2018
Registered On :04.06.2018
Decided on :05/02/2021
Duration :Y-02/M-09/D-03
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 569 OF 2018
EXHIBIT-29
Yash Enterprises a partnership firm
duly registered under the Indian Partnership
Act, 1932 having its office at B-7,
Wadala Udyog Bhavan, Naigaon Cross Road,
8, Katrak Raod, Wadala, Mumbai-400 031 ...Plaintiff
V/s.
Pizo Project & Engineering
Consultants Pvt Ltd., a Company
governed by and incorporated under
provisions of The Companies Act, 1956
having its registered office at Ground Floor,
Rane Niwas, Plot No. 734-735 Road No.4,
Parsi Colony, Dadar, Mumbai-4000 14 ... Defendant
SUIT FOR RECOVERY OF RS.1,69,809/-
Appearance:-
Adv.Mr. Prashant Chande for the plaintiff.
Exparte against Defendant.
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CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
JUDGE,CITY CIVIL COURT
GR.MUMBAI (C.R. NO.59).
DATE : 05/02/2021
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
The facts of the case are as under :
2. The Plaintiff is a Partnership Firm under the Partnership
Act. The defendant is a Company incorporated under The Companies
Act. In Pursuance of the orders of the defendant, plaintiff sold, supplied
and delivered to the defendants from time to time the various goods
aggregate va;ie pf Rs.4,53,966/-. The defendant have made payments
from time to time aggregating to Rs. 3,59,234/-. After adjusting the said
part payments, a sum of Rs. 94,762/- with all accrued interest at the
rate of 22% p.a. from the respective due dates of the invoices still
remains due and payable by defendant to the plaintiff. The said rate of
interest is the contractual rate of interest. The said amount of interest
comes to Rs.75,047/-. Thereafter, towards the discharge of the debt and
liability for the part payment of the balance price of the said said goods
sold and supplied to the defendant under the invoices, the defendant
drew in favour of and delivered to the plaintiff its cheque bearing
Nos.053546 for the supply of Rs.35,000/- from an account maintained
by the defendant. But defendant requested the plaintiff to not to deposit
the cheque as the defendant was unable to arrange for the funds.
Thereafter, defendant issued cheques bearing nos. 053547 and
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053548/-, but said cheques were returned dishonoured with remark
“Exceeds Arrangements”. The defendant failed to pay the total sum of
Rs.1,69,809/- inspite of various requests made by the plaintiff.
According to the plaintiff defendant is liable to pay amount of
Rs.1,69,809/- on the date of the filing of the suit. Hence, plaintiff is
constrained to file the suit for recovery of the said amount. The total
suit claim of the plaintiff for Rs.1,69,809/-.
3. The suit summons were duly served on the defendant but
he failed to appear. Hence, suit is posted for judgment as per order
XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
4. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. What is due and payable from the
defendant to the plaintiff ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.1,69,809/- with
interest
@ 22 % per annum
on principal amount
of Rs.94,792/-
2. What order and decree? As per final order.
REASONS
5. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of documents Date
5 Invoice Bearing No. 445 for
Rs.21,522/-
05/07/2014
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Exhibit.
No.
Description of documents Date
6 Delivery challan bearing No.16405 05/07/2014
7 Invoice bearing No.446 for
Rs.4515/-
05/07/2014
8 Delivery challan bearing No.16406 05/07/2014
9 Invoice bearing No.469 for
Rs.6,160/-
11/07/2014
10 Safe E bearing No.38701244 09/07/2014
11 Invoice bearing No.641 for
Rs.2,200/-
21/08/2014
12 Delivery Challan bearing No.16594 21/08/2014
13 Invoice bearing No.649 for
Rs.13,060/-
21/08/2014
14 Delivery challan bearing 16392 21/08/2014
15 Invoice bearing no.5 for
Rs.13,799/-
02/04/2015
16 Delivery Challan bearing No.18153 02/04/2015
17 Invoice bearing No.61 for
Rs.18,799/-
21/04/2015
18 Delivery challan bearing No.18051 21/04/2015
19 Invoice bearing no.247 for
Rs.19,246/-
09/06/2015
20 Delivery challan bearing No.18078 09/06/2015
21 Bank Statement 01/04/2015 to
15/05/2015
22 Cheque bearing No.053546 15/11/2015
23 Cheque bearing No.053547 14/11/2017
24 Memo 14/11/2017
25 Cheque bearing No.053548 14/11/2017
26 Memo 14/11/2017
27 Notice 12/12/2017
28 A.D.Cards
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AS TO POINT NO.1:
6. All the documents produced by the plaintiff at list Exhibit-5
to 28 go to establish that plaintiff has supplied goods to the defendants.
The documents further prove that the amount of Rs.94,762/- is due and
payable to the plaintiff company from defendant towards delivered of
goods. But, defendants failed to pay total amount of Rs.94,762/-
towards purchase of goods. The documents at list Exhibit-5 to 28 go to
establish that defendant is liable to pay Rs.1,69,809/- to the plaintiff on
the date of filing of the suit towards the purchase of goods and
therefore the defendant is avoid to pay the balance amount to the
plaintiff. In this background, it is held that plaintiff is entitled to recover
sum of Rs.1,69,809/- from the defendant.
7. The plaintiff has claimed 22% per annum on the principal
amount. As per section 34 of the Code of Civil Procedure the rate of
interest may exceed 6% per annum, if the transaction is commercial and
there is no contract pertaining to the same between the parties. In the
present case the transaction is a commercial one and there is contract
existing between the parties as to the rate of interest which shall be
levied. Therefore, rate of interest at the rate of 22% per annum would
be just and proper to be awarded on the principal sum adjudged i.e.
amount of Rs.1,69,809/-. Hence, point no.1 is answered in the
affirmative.
AS TO POINT NO.2:
8. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.1,69,809/- from the defendant
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with interest at the rate of 22% per annum from the date of filing of
the suit till its realization. Plaintiff is also entitled to recover cost of the
suit from the defendant. Hence, in answered to point no.2, I proceed to
pass the following order.
ORDER
1. The defendant shall pay Rs.1,69,809/- (Rs. One Lakh
Sixty Nine Thousand Eight Hundred Nine Only) to the
plaintiff and he shall also pay with interest on
principal amount of Rs.94,762/- at the rate of 22% per
annum from the date of filing of the suit till its
realization.
2. The defendant do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(S. G. Shaikh)
Judge, City Civil Court,
Date : 05/02/2021 Gr. Bombay
Dictated on : 05/02/2021
Typed on : 05/02/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/02/2021 10.55 a.m. ( Mayuresh P Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
05/02/2021
JUDGMENT/ORDER signed by
P.O.on
05/02/2021
JUDGMENT/ORDER uploaded on 06/02/2021
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