Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010066802019
Presented on : 28062021
Registered on : 25092021
Decided on : 30092021
Duration : Y2, M3,D2
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
COMMERCIAL SUIT NO.123 OF 2019
M/s. Chetana Book Depot, ]
a partnership firm, (Now known as ]
Chetana Publications India (LLP), having ]
their 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 the books sold by the
plaintiff to the defendants.
In brief, the facts of the plaintiff's case are as under :
2. During the period from March, 2016 to November,
2016, the plaintiff has sold, delivered and supplied educational
books to the defendants through Transporter M/s. VRL Logistics
and, M/s Kerala Roadways Pvt. Ltd. for an aggregate amount of
Rs. 8,57,493/. The defendants have returned the books of
Rs.1,27,543/ during the period from March, 2017 to January,
2018. The defendants have made payment for an aggregate
amount of Rs.2,50,000/. The cheques issued by the defendants
were dishonoured. The defendants were liable to make payment of
Rs.4,79,950/ in respect of following invoices:
i) Invoice No.20847.01 dated 22.03.2016 for Rs.1,82,784/
ii) Invoice No.20841.01 dated 22.03.2016 for Rs.1,82,784/
iii) Invoice No.20839.01 dated 30.03.2016 for Rs.1,12,863/
iv) Invoice No.20840.01 dated 30.03.2016 for Rs.1519/
(balance amount).
3. The defendants have issued cheque dated 09.02.2018
for Rs.4,80,700/ i.e. for Rs.4,79,950/ being the balance amount
and for sum of Rs.750/ being the bank charges of dishonoured
cheque. The said cheque has been dishonoured. In spite of
repeated demands, the defendants have failed and neglected to
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make the payment. Therefore, on 14.07.2018, the plaintiff has
issued notice to the defendants, calling upon them to make the
payment of Rs.6,72,079/. However, the defendants have failed to
make the payment. The defendants are liable to pay amount of
Rs.7,11,944, comprising sum of Rs.4,80,700/ being the principal
amount and sum of Rs.2,31,244/ being the amount of interest at
the rate of 18% p.a. till the date of filing of suit. With these
contentions, the plaintiffs have prayed for recovery of sum of
Rs.7,11,944/ together with interest at the rate of 18% p.a. on
amount of Rs.4,80,700/
4. The suit is proceeded exparte against the defendants.
5. 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.4,79,950/ to the plaintiff?
Yes
2. If, yes, what is the rate of interest to 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:
6. 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.08. The plaintiff has
relied on following documentary evidence:
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1 True copy of the Power of Attorney at Exh.11
2 Copy of mediation application from filed before the
Mediator at ArtX colly
3 NonStarter report for the preinstitution mediation at Art
X1.
4 Copy of invoice No.15/20847.01 dated 23.03.2016 for
Rs.1,82,784/ at Exh.12 (colly)
5 Copy of invoice No.15/20841.01 dated 22.03.2016 for
Rs.1,82,784/at Exh.13 (colly)
6 Copy of invoice No.15/20840.01 dated 30.03.2016 for
Rs.1,12,863/at Exh.14
7 Copy of invoice No.15/20839.01 dated 30.03.2016 for
Rs.11,832/ at Exh.15
8 True copy of the said dishonoured cheque along with the
Memo of dishonoured issue by the bank at ArtX2 (colly)
9 Copy of notice dated 14.07.2018 from plaintiff's Advocate
to the defendants at Exh.16
7. Shaji (PW1) deposes that pursuant to the oral orders
placed by the defendants, the plaintiff has sold, supplied and
delivered the educational books to the defendants from March
2016 to November 2016. The aggregate amount of the books sold
is Rs.8,57,493/. The defendants have returned the goods
amounting Rs.1,27,543/. The defendants have also made payment
of Rs.2,50,000/. By deducting these amounts, the defendants
were liable to pay the amount of Rs.4,79,950/. The plaintiff has
relied upon following invoices:
i) Invoice No.20847.01 dated 22.03.2016 (Exh.12) for
Rs.1,82,784/
ii) Invoice No.20841.01 dated 22.03.2016 (Exh.13) for
Rs.1,82,784/
iii)Invoice No.20839.01 dated 30.03.2016 (Exh.14) for
Rs.1,12,863/
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iv) Rs. 1,519 being balance amount of invoice No.20840.01
dated 30.03.2016 (Exh.15).
8. Total amount as per the above particulars is
Rs.4,79,950/. It is the contention of the plaintiff that the
defendants had issued cheque for the payment of this amount,
however the cheque has been dishonoured and therefore, the
plaintiff has added cheque, return charges of Rs.750/. It is further
the case of the plaintiffs that by adding said cheque return charges
of Rs.750/, the defendants had issued cheuqe of Rs.4,80,700/ to
the plaintiff, but the same has been dishonoured. Therefore, the
plaintiff has claimed the said amount from the defendants. The
aforesaid oral and documentary evidence of the plaintiff remained
unchallenged, it is required to be accepted. Therefore, the plaintiff
proves that for the books sold to the defendants, the defendants
were liable to pay amount of Rs.4,79,950/ to the plaintiff.
9. The plaintiff has claimed the interest for amount of
Rs.2,31,244/ at the rate of 18% p.a. as per the clause mentioned
on the invoice. There is no document on record to accept the said
rate of interest as agreed rate of interest. Clause of interest
mentioned on the invoice, cannot be accepted as agreed rate of
interest. Hence, considering the transaction is commercial
transaction, the plaintiff will be entitled for the interest at the rate
of 11% p.a. Such rate of interest will be applicable from the date of
action initiated or demand made for the payment. The rate of
interest will be applicable from the date of action initiated i.e. from
the date of filing of suit. Hence, the plaintiff is entitled for the
interest at the rate of 11% p.a. from the date of filing of suit till its
realisation. Hence, I answer point Nos.1 and 2 accordingly.
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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.4,79,950/ (Rupees Four Lakhs
Seventy Nine Thousand Nine Hundred Fifty
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 : 04.10.2021
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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