Order 1

Order Details: Ex-parte Judgement
Pdf Text: Judgment Exh. 1 Sum.Suit 812/18
MHCC010061422018
Presented on : 04-05-2018
Registered on : 07-08-2018
Decided on : 11-03-2021
Duration : 2 years, 10 months, 7 days
IN THE CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 812 OF 2018
M/s. Eagle Sales Corporation
a firm, duly registered under the
provisions of the Indian Partnership
Act, 1932, having their office at
Tavawala Building, 147, Lohar Chawl,
Mumbai - 400002. ...Plaintiff
V/s.
Jameks Engineering Pvt Ltd
a company incorprated under the
Companies Act 1956 having its office
at SA 49 and 50, 2nd Floor, Lake City
Mall, Kapurbawdi, Thane West, 400607. ...Defendant.
Appearances:-
Advocate Mr. Ganesh M. Shetty for the plaintiff.
Defendant Ex-parte.
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R. NO. 28)
DATE : 11th MARCH, 2021
J U D G M E N T
1. This is Summary Suit for recovery of amount of
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Judgment Exh. 2 Sum.Suit 812/18
Rs.2,59,098/- with pendente lite and future interest at the rate of 18%
p.a..
2. According to the plaintiff, it is a partnership firm duly
registered under the Indian Partnership Act, and carrying on business of
trading in electrical goods and allied articles. Pursuant to the
defendant’s purchase order, the plaintiff sold, supplied and delivered to
the defendant certain goods as per the agreed rate. The plaintiff has
maintained books of account regarding all the transactions in respect of
the goods sold and the payment made by the defendant. The amount of
Rs.4,19,575/- was due and payable by the defendant on 30.03.2017 to
the plaintiff. In discharge of the same amount, the defendant issued
cheque dated 18,04.2017 bearing No.362410 for Rs.4,19,575/- in
favour of the plaintiff. However, after handing over the cheque the
defendant requested the plaintiff to not to deposit the same as the
defendant has not arranged the funds to honour the same. Thereafter,
the defendant made part payment of Rs.1,00,000/- on 20.05.2017,
thereby leaving a balance of Rs.3,19,575/- to be payable by the
defendant. After further pursuasion for the remaining amount, the
defendant instructed the plaintiff to deposit the cheque of Rs.4,19,575/-
and to refund to the defendant the excess payment of Rs.1,00,000/-,
against encashment of said cheque. However, when the plaintiff
presented the said cheque for encashment, it was dishonoured for the
reasons funds insufficient on 19.07.2017. Thereupon, the plaintiff
issued legal notice dated 08.09.2017 for recovery of the balance of
Rs.3,19,575/- with interest. The defendant thereupon paid Rs.50,000/-
on 05.10.2017 and Rs.50,000/- on 13.03.2018, in total Rs.1,00,000/-.
Thus, balance of Rs.2,19,575/- still remained to be due and payable by
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Judgment Exh. 3 Sum.Suit 812/18
the defendant. Despite demand, the defendant failed to pay the said
amount. Therefore, at the institution of the suit total amount of
Rs.2,59,098/- including the past interest amount at the rate of 18% p.a.
was due and payable by the defendant. Therefore, the plaintiff claimed
recovery of the same amount with pendente lite and future interest at
the rate of 18%. Hence, this suit.
3. Despite service of summons the defendant failed to appear.
Therefore, the suit proceeded ex-parte against the defendant.
4. Considering the material on record and submissions made
on behalf of the plaintiff, points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled to
recovery of the amount as prayed?
Affirmative.
2. At what rate of pendente lite and
future interest ?
12% p.a.
3. What order & decree? As per final order
REASONS
AS TO POINTS NO.1 to 3:-
5. The plaintiff filed evidence affidavit of its partner PW-1
Tanmay at Exh.6 and also produced documents with list Exh.7. The
testimony of PW-1 Tanmay speaks that pursuant to the purchase order
dated 30.03.2017, issued by the defendant, the plaintiff sold goods to
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Judgment Exh. 4 Sum.Suit 812/18
the defendant and raised the invoices as described in para 2 of his
affidavit for total Rs.10,72,551/-. The goods were received by the
defendant. The defendant made part payment. As per the account
regularly maintained by the plaintiff, on 30.03.2017, the amount of
Rs.4,19,575/- was due and payable by the defendant. The defendant
had issued cheque dated 18.04.2017 in discharge of the said amount.
However, he requested to not to deposit the same and thereafter
defendant made part payment of Rs.1,00,000/-, leaving balance of
Rs.3,19,575/-. Thereafter, the defendant asked the plaintiff to deposit
the same cheque for encashment and to refund excess amount of
Rs.1,00,000/- against the encashment to the defendant. The plaintiff
accordingly deposited the same cheque but it was dishonoured.
Thereafter, when the plaintiff issued legal notice dated 08.09.2017, the
defendant made part payment of Rs.50,000/- each on 05.10.2017 and
13.03.2018, in total Rs.1,00,000/-. Still, the amount of Rs.2,19,575/-
remained to be due and payable by the defendant. At the institution of
the suit including the amount towards past interest the defendant was
liable to pay amount of Rs.2,59,098/-. The testimony of PW-1 is
unchallenged there being no cross-examination to it. Therefore, same
has to be relied on.
6. That apart the documents below list Exh.7, such as the
purchase order, invoice, delivery note and statement of account also
support the testimony of PW-1 Tanmay. The cheque issued by the
defendant is produced on record. It has to be presumed that, it was
issued in discharge of the liability of Rs.4,19,575/-. The testimony of
PW-1 Tanmay corroborated by the documents on record and failure of
the defendant to contest the suit proved the case of the plaintiff.
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Judgment Exh. 5 Sum.Suit 812/18
Therefore, the plaintiff is entitled to recovery of the amount of
Rs.2,59,098/-. Regarding pendente lite and future interest, it is just and
proper, in view of the facts and circumstances, to grant the same at the
rate of 12% p.a.. Hence, point No.1 is answered in the Affirmative and
point No.2 is answered as 12% p.a.. In answer to point No.3 order as
follows is passed:-
ORDER
1. The suit is ex-parte decreed with costs as under.
2. The Defendant shall pay to the plaintiff amount of Rs.2,59,098/-
(Rupees Two lakh Fifty-Nine Thousand Ninety-Eight Rupees Only) with
simple interest at the rate of 12 p.a. on principal amount of
Rs.2,19,575/- from the date of suit till realization of the amount.
3. Decree be drawn up accordingly.
(Deepak L. Bhagwat)
Ad-hoc Judge,
City Civil Court, Mumbai
Date: 11.03.2021
Dictated on : 11.03.2021
Transcribed on : 12.03.2021
Date of sign : 17.03.2021
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Judgment Exh. 6 Sum.Suit 812/18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 17.03.2021 5.35 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
11.03.2021
JUDGMENT /ORDER signed by P.O. on 17.03.2021
JUDGMENT /ORDER uploaded on 17.03.2021
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