Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010062122019 Presented on 19-06-2019
Registered on 20-09-2019
Decided on 15-07-2023
Duration 4yrs: 00M: 26D
Exhibit 14
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 933 OF 2019
M/s. Chetana Stationery, a division of Chetana ]
Publication Pvt. Ltd., office at 4th Floor, ‘B’ Wing, ]
Building ‘E’, Trade Link, Kamla City, Above ]
Bombay Canteen, Lower Parel, Mumbai – 400 013 ]...Plaintiffs
VERSUS
1. Late Shri Balibhandra Sing, Shikshan ]
Sansthan Jayprakash Nagar, Kharodi, Marve Road, ]
Malad (West), Mumbai – 400095. ]
2. Chandravati Shingh ]
3 Jayprakash Shingh ]
4 Rajesh Shingh ]
5 Brijesh Shingh ]
6 Yashwant Shingh ]
Both the an Adult, age and Full name not known ]
Both the Jayprakash Nagar, Kharodi, Marve Road, ]
Malad (West), Mumbai- 400095. ]
7. Sir J. P. Hindi Medium School ]
Kharadi Gaon, Khardi Marve Road ]
Malad (West), Mumbai – 400095. ]...Defendants
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Appearance :
Ld. Advocate Mr. Sudhakar G. Lakhani for the plaintiffs.
None for the defendants (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 15/07/2023.
J U D G M E N T
( 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.2,42,356/-. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is carrying on business of selling books etc.
and is a division of Chetana Publications Pvt. Ltd. Defendant No.1 is a
Trust running the School defendant No.7 and defendants No. 2 to 6
are the trustees of defendant No.1. Defendant No.1 runs the various
schools.
3. According to the plaintiff, pursuant to the orders placed by
the defendants for supply of educational books, they sold, supplied
and delivered to the various school of defendants as per defendants’
requirement during the month of April, 2016 to June, 2016 through
their own Tempo. Accordingly the invoices were raised on the
defendants. They sold the books for Rs.2,35,020/- by the invoice dated
11-06-2016 and then supplied and delivered the books to the School-
defendant No.7 on 12-06-2016. However, the defendants have failed
to make payment of the balance amount of Rs. 3,58,031/-, within the
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stipulated time as provided under the said invoices.
4. According to the plaintiff, they requested the defendants
on several occasions to clear off the outstanding dues. However, the
defendants failed and neglected to pay the amount. Therefore, they
issued the demand notice dated 08-01-2019 through its advocate and
called upon the defendants to pay the amount of Rs.3,58,031/-. The
defendants by their reply dated 16-01-2019 falsely alleged that they
have cleared off all their dues from time to time, and refused to pay
the amount. According to the plaintiff, as against the books supplied to
defendant No.7 for the amount of Rs.2,35,020/-, amount
Rs.1,60,300/- is outstanding. According to the plaintiff, it is entitled to
interest Rs.82,055/- at the rate of Rs.18% p.a. from 11-07-2016 till
filing the suit, and claimed the amount aggregating to Rs.2,42,356/-.
Hence, the present suit.
5. The defendants were served with the writ of summons.
The plaintiff has filed affidavit of service at Exh.2 and 7. Despite
service, the defendants No.1,2 and 3 to 7, have not caused their
appearance, Hence, the suit proceeded ex-parte against them by the
order dated 29-09-2022 and order dated 30-11-2022, and the suit
stood abated against defendant No.3 by the order dated 29-09-2022.
6. In support of claim, the plaintiff filed its affidavit of claim
of Shaji John, the authorized signatory of the plaintiff at Exh.8 and
reiterated its contention for recovery of Rs.2,42,356/- along with
future interest at the rate of 18% p.a. on the amount of Rs.1,60,300/-.
The plaintiff has filed and relied upon the following documents.
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Sr.
No. Exhibit No. Particulars
1 Exh.10 Copy of Invoice No.16/349.01 dated 11-06-2016
for Rs.2,35,020./-
2 Exh.11 Copy of notice dated 08-01-2019 from plaintiff’s
advocate to defendants.
3 Exh.12 Copy of reply dated 16-01-2019 from defendant to
Plaintiff’s advocate.
7. 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 Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.2,42,356/-
from the defendants?
If yes, at what rate interest?
- No -
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 at Exh.8 in
support of the case set out in the plaint 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 plaintiff has
supplied the books to the defendants and more particularly to
defendant No.7 by the invoice dated 11/06/2016 raised on the
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defendant No.7 for the amount of Rs.2,35,020/-. However, at the
outset, it must be observed that merely because the suit proceeded
ex-parte, it cannot be said that the plaintiff is
ipso-facto entitled to
the decree for the claimed amount. While granting the decree, there
is always scrutiny to the materials placed on record and application
of the judicial mind.
9. It may be seen that though it is appearing that the suit
is based on only on invoice in respect of the books sold out to
defendant No.7, there is no clarity in the pleadings and even in the
claim affidavit. It is not clear whether the plaintiff has maintained
the account of the defendants in respect of the books supplied to
them at the various occasions.
10. It is averred that the books have been supplied to
defendant No.7 during the period from May, 2016 to June, 2016 as
per the defendants’ requirement. It is appearing that defendant
No.7 is the school run by defendant No.1 and defendants No.2 to 6
are the trustees of defendant No.1. It also appears from the
submission of the counsel for the plaintiff that defendant No.1 runs
the various schools including Sir J. P. Hindi Medium School, Kharadi
Gaon i.e. defendant No.7.
11. Though the averments made in the plaint suggest that
several invoices were raised in respect of the several purchase orders
of supplying the books to defendant No.7, the plaintiff has not
placed on record the book of accounts or the copy of it. The
pleadings suggest that the plaintiff had raised the invoice
No.349.01, dated 11/06/2016 on defendant No.7 in respect of the
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amount of Rs.2,35,000/- and there is a balance of amount of
Rs.1,60,300/-. However, it is important to note that as per the
averments made in the plaint, the plaintiff had issued the notice
dated 08/01/2019 through the advocate calling upon the
defendants and two other schools to pay the amount of
Rs.3,58,031/- and while replying the said notice by the defendants,
it is communicated to the plaintiff that they have paid the amount of
Rs.4,65,259/- by six cheques and no amount is outstanding. It is
important to note that the plaintiff has not disputed about receipt of
the said amount from the defendants towards the purchase of the
books. On this background, it was incumbent on the part of the
plaintiff to place on record the statement of account of defendant
No.7 maintained by it.
12. Though it is stated in the legal notice dated 08/01/2019
that amount of Rs.1,29,323/- is outstanding against Sir J. P. High
School, amount of Rs.1,78,206/- is outstanding against Sir J. P.
Hindi High School (i.e. defendant No.7) towards the books sold out
to it, and amount of Rs.50,502/- is outstanding against J.P.’s KIDs
aggregating to Rs.3,58,031/-. It suggests that the plaintiff has
maintained the statement of account of the schools separately and
therefore, outstanding amount against the schools have been shown
distinctly. Therefore, it is incomprehensible as to why the plaintiff
has not placed on record the statement of account in respect of the
books sold out to defendant No.7.
13. In the legal notice, it is stated that outstanding amount
against defendant No.7 was Rs.1,78,206/- as against the invoice
11/06/2016 of Rs.2,35,020/-. It means that before issuing the
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notice, the defendants had paid the amount in respect of the said
invoice. However, the pleadings do not suggest that after raising
the said invoice and before issuing the legal notice, any amount was
received from the defendants in respect of this invoice. On the
contrary, it is pleaded that in spite of repeated requests and the
demands, the defendants failed and neglected to make the payment.
This pleading/averment is falsified by not disputing the receipt of
amount of Rs.4,65,259/- as stated in the reply of legal notice
received from the defendants.
14. Further anomaly seen in the pleadings is that it is
nowhere the case of the plaintiff that after serving the demand
notice, any amount is received from the defendants in respect of the
invoice in question raised on defendant No.7. In the legal notice, it
is stated that outstanding amount of Rs.1,78,206/- was outstanding;
however, it is pleaded by the plaintiff that amount of Rs.1,60,300/-
was outstanding on the date of filing the suit. When it is not the
case of the plaintiff that any amount has been paid by the
defendants in respect of the said invoice raised on defendant No.7,
even after issuing the legal notice, it was necessary for the plaintiff
to explain how the outstanding amount has been reduced after
issuing a legal notice. It is not the case of the plaintiff that the
quantum of the outstanding amount is reduced as certain part of the
claim has been abandoned. On this backdrop, it was very much
necessary and obligatory on the part of the plaintiff to place on
record the statement of account and book of accounts showing the
transactions and receipt of the amount, if any from the defendants.
15. When undisputedly, amount of Rs.4,65,259/- has been
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received by the plaintiff by five cheques at the different occasions
during the period from 10.09.2017 to 10.02.2018, it was obligatory
on the part of the plaintiff to clarify as to how the amount received
from the defendants has been adjusted and how the account is
settled against the outstanding amount of Rs.3,58,031/- mentioned
in the legal notice and the plaint, and more particularly in respect of
outstanding amount Rs.1,60,300/- claimed in the plaint. Because of
not clarifying this aspect and not placing on record the statement of
account or book of accounts, there is no reason not to draw the
inference that the plaintiff has received more amount than the
outstanding amount claimed in the present suit. Therefore, I hold
that the plaintiff failed to prove that amount of Rs.1,60,300/- was
outstanding as the principal amount towards the books sold out to
defendant No.7. Consequently, applying and showing the interest
on the said amount and claiming the interest amount of Rs.82,056/-
is unwarranted. Furthermore, It may be seen one interesting thing in
respect of the interest claimed on the amount of Rs.1,60,300/-. The
plaintiff has claimed the interest amount at the rate of Rs.18% per
annum from 11/07/2016 till 17/05/2019 i.e till filing the suit. The
calculation of the interest amount Rs.82,056/- on the alleged
balance amount of Rs.1,60,300/- is again incorrect, and rather it is
made incorrect with not bona-fide intention. If the interest is
calculated at the said rate for the said period, it comes to
Rs.67,135/- and not Rs.82,056/-. Thus, I’m of the view that the suit
is not appearing based on the bona-fides calculation and not
supported by statement of account. Merely because invoice is
placed on record, suit cannot be decreed. Furthermore, the plaintiff
failed to prove that claimed amount Rs.1,60,300/- was outstanding.
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Therefore, I hold that the plaintiff is not entitled to recover any
amount from the defendants and therefore, I answer point No.1 in
the negative. In the result, I answer to point No.2, I proceed to pass
the following order.
O R D E R
1] The suit is dismissed.
2] Decree shall be drawn accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 15-07-2023 Court Room No.61
Dictated on : 15-07-2023
Corrected & Signed on :17-07-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18-07-2023 at 5.55p.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
15-07-2023
JUDGMENT/ORDER signed by P. O. on 17-07-2023
JUDGMENT/ORDER uploaded on 18-07-2023
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