Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010066722019
Presented on : 28062019
Registered on : 25092019
Decided on : 30092021
Duration : Y2, M3,D2
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
COMMERCIAL SUIT NO.122 OF 2019
M/s. Chetana Stationery, a division of ]
Chetana Publications Pvt. Ltd., having its ]
registered office at 4th floor, B Wing, Building E, ]
Trade Link, Kamla City, above Bombay Canteen, ]
Lower Parel, Mumbai400 013 ]....Plaintiff
V/s
1. M/s. Mars Academy Partner ]
KBK Building, Nr.MES KVM College, ]
Valanchery, Kottaram, Malappuram, ]
Kerala676552 ]
2. Mr.Suresh Kumar, ]
an adult, C/o. Mars Academy Partner, ]
KBK Building, Nr.MES KVM college ]
Valanchery, Kottaram, Malappuram, ]
Kerala676552 ]...Defendants
APPEARANCE :
Ld. Adv. S.G.Lakhani for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 30th September, 2021
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EXPARTE JUDGMENT
(Dictated in Open Court)
This suit is filed under the Commercial Courts Act,
2015 for recovery of an amount against books sold by the plaintiff
to the defendant.
In brief, the facts of the plaintiff's case are as under :
2. The plaintiff is carrying on business of selling books.
The defendant No.1 is the partnership firm and defendant No.2 is
its partner. Pursuant to the order placed by the defendants from
time to time, the plaintiff has sold, supplied and delivered to the
defendants the education books through Transporter M/s. A.B.T.
Parcel Service. The amount of said books sold is Rs.6,53,343/.
The defendant on 06.10.2017 returned the books of Rs.2,48,486/,
in which the plaintiff issued credit note. The plaintiff also debited
sum of Rs.64,080/ towards transportation charges. The
defendants have failed to make the payment of Rs.4,68,937/ i.e.
balance amount for Rs.2,09,771/ against invoice No.205.01
(Rs.2,15,586/) and Rs.1,95,086/ against invoice No.184.1, and
Rs.64,080/ in respect of the transportation charges. The
defendants have failed to make the payment of amount of
Rs.4,68,937/ within stipulated time as stated in the invoices and
therefore, they are bound to pay the interest thereon as provided
in the invoices. In spite of repeated demands, the defendants have
failed to pay the said amount to the plaintiff. Therefore, on
14.07.2018, the plaintiff has issued notice, calling upon the
defendants to make the payment of Rs.6,22,313/ together with
interest due thereon. The said notice returned with endorsement
“Left”. The defendants are liable to pay the amount of
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Rs.4,68,937/ being the principal amount and Rs.1,87,467/ as
amount of interest at the rate of 18% p.a. from due date of
invoices. With these contentions, the plaintiff has prayed for the
decree for recovery of said amount.
3. By Order dated 08.03.2021 of my Predecessor, the suit
is proceeded exparte against the defendant.
4. Heard the learned Advocate for the plaintiff. No
argument of the defendants. Points for determination along with
my findings thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiff proves that against the
books supplied to the defendants, the
defendants are liable to pay the amount of
Rs.4,68,937/ to the plaintiff?
Yes
2. If, yes, what is the rate of interest which the
defendants are liable to pay? @ 11%p.a.
3. What order and decree? Suit is partly decreed
REASONS
AS TO POINTS NO.1 AND 2:
5. All these points are interlinked with each other, hence
they are taken together for consideration. The plaintiff in support
of his claim has examined Shaji (PW1) at Exh.07. The plaintiff has
relied on following documentary evidence:
1 True copy of the resolution at Exh.9
2 Copy of Mediation Application Form filed before the
Mediator
3 NonStarter report for the preinstitution mediation.
4 Copy of invoice No.205.01 dated 27.04.2016 for
Rs.2,15,586/ at Exh.10
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5 Copy of invoice No.184.01 dated 21.05.2016 for
Rs.1,95,086/at Exh.11
6 Debit voucher for Rs.64,080/ for transportation charges at
Exh.12 colly
7 Copy of notice dated 14.07.2018 from plaintiff's Advocate
to the defendants at Exh.13
8 Copy of the statement of accounts for the period from
01.04.2016 to 31.03.2020 at Exh.14
6. Shaji (PW1) deposes that pursuant to the oral order
placed by the defendants, the plaintiff has sold the educational
books to the defendants from April 2016 to June 2016. The
aggregate amount of the books sold is Rs.6,53,343/. The
defendants have returned the books amounting Rs.2,48,486/ in
which the credit note has been issued by the plaintiff. He further
deposes that the plaintiff also debited sum of Rs.64,080/ towards
the transportation charges. Thereby, the defendants were liable to
pay Rs.4,68,937/. The plaintiff has bifurcated the amount as
follows:
(a) Balance amount of Rs.2,09,771/ of invoice
No.16/205.01 dated 27.04.2016 (Exh.10)
(b) Invoice No.16/184.01 dated 21.05.2016 (Exh.11) for
Rs.1,95,086/
(c) Transportation charges, (Exh.12 colly) for Rs.64,080/
7. The invoice No.16/205.01 dated 27.04.2016 (Exh.10)
is for Rs.2,15,586/. According to the plaintiff after adjustment of
payment received, the balance amount of Rs.2,09,771 is due
against this invoice. The invoice No.16/184.01 (Exh.11) dated
21.05.2016 is for Rs.1,95,086/. Debit voucher ( Exh.12) is in
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respect of transportation charges for Rs.64,080/. The plaintiff is
claiming these amounts due and payable from the defendant. The
copy of statement of account (Exh.14) shows that Rs.4,68,937/
was the outstanding amount, payable by the defendant. The oral
and documentary evidence remained unchallenged. Hence, the
plaintiff proves that the defendants have failed to pay an amount
of Rs. 4,68,937/ against the books supplied by the plaintiff.
8. It is the contention of the plaintiff that Rs.4,68,937/
was the outstanding amount, due and payable from the defendant.
Shaji (PW1) deposes that as per the invoices, the plaintiff is
entitled for the interest at the rate of 18% p.a. from the due date of
invoices. It is the case of the plaintiff that, the plaintiff is entitled
for the interest of Rs.1,87,467/. In the particulars of claim 'Exh.C'
to the plaint, the plaintiff has provided the particulars of interest
but the same cannot be considered as agreed rate of interest, as
there is no agreement to the rate of interest. Applying to the such
rate of interest will be unilateral application of the terms
mentioned on the invoices. Considering the nature of transaction
as commercial transaction, at the most the plaintiff will be entitled
for the interest at the rate of 11% p.a. Hence, the plaintiff will be
entitled for the interest at the rate of 11% p.a. from the date when
the plaintiff initiated action against the defendants for recovery of
the said amount.
9. As aforesaid, the plaintiff proves that the amount of
Rs.4,68,937/ is due and payable from the defendants against the
books supplied by the plaintiff to the defendants. The plaintiff also
proves that the defendants have failed to make payment of the said
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amount to the plaintiff. The plaintiff is entitled for the interest at
the rate of 11% p.a. being the rate applicable for commercial
transaction and the same will be applicable from the date of filing
of suit till date of realisation. Hence, I answer point Nos.1 and 2
accordingly.
AS TO POINT NO.3:
10. In view of my findings recorded against point Nos.1
and 2, the suit is required to be partly decreed. In the result, in
answer to point No.3, I pass the following order.
ORDER
1. Suit is partly decreed with costs.
2. The defendants do pay to the plaintiff the
amount of Rs.4,68,937/ (Rupees Four Lakh Sixty
Eight Thousand Nine Hundred Thirty Seven
Only) together with interest at the rate of 11%
per annum from the date of filing of this suit till
its realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :30.09.2021 Mumbai.
Dictated on : 30.09.2021
Transcribed on : 01.10.2021
Signed by HHJ on : 04.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.10.2021 at 10.55 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
30.09.2021
Judgment/order signed by P.O. on 04.10.2021
Judgment/order uploaded on 06.10.2021
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