Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.723/2018
Received on : 01.06.2018
Registered on : 17.07.2018
Decided on : 01.04.2019
Duration : Y M D
00 10 01
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 723 OF 2018
CNR NO.: MHCC010068642018
Mr. Velji Palan Shah
Age 73 years, Occ: Business
Sole proprietor of M/s Bindiya Sarees
having address 6987, Dr. Atmaram Merchant Road,
Opp. Gokul Building, Bhuleshwar,
Mumbai 400 002 ...Plaintiff
Versus
Mr. Deepak Shridhar
Age : Not known, Adult, Occ: Business
Sole proprietor of M/s Kashi Deep
having address at 42, Sitlamata Bazar,
Indore 452 002
Madhya Pradesh ...Defendant
Appearances:
Advocate Mr. Dardare for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 1st APRIL, 2019.
[ J U D G M E N T ]
Story of plaintiff's case in short is as under :
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1. Plaintiff has stated that in the month of September 2017,
towards the receipt of goods so for supplied to the defendant, the
defendant issued three cheques against the bill No.472 dated
22.04.2017, drawn on State Bank of India, Indore Branch, drawn on his
clients favour, bearing (1) cheque No.277644, dated 09.09.2017, for
Rs.15000/ (2) Cheque No.277645, dated 17.09.2017 for Rs.15000/
and (3) Cheque No.277646, dated 26.09.2017, for Rs.14145/ drawn
on his favour, totaling to the sum of Rs.44,145/. Moreover, for the bill
No.409 dated 82.2017, having amount of Rs.20350/ the defendant
told the him that he will make RTGS of that bill in his Bank Account,
however, so far he has failed and neglected to make the payment of that
amount of Rs.20350/ also.
2. Plaintiff has further stated that cheque was deposited by him in
his Bank Account of UCO Bank, Kalbadevi Branch on 2.11.2017. But to
shock and dismay, the said cheques were returned dishonoured from
his banker, with a remark, 'PAYMENT STOPPED BY DRAWER'. Plaintiff
has further stated that his Bankers intimated to him about the
dishonour of the said cheques vide intimation, dated 2.11.2017, stating
the reason of return as 'PAYMENT STOPPED BY DRAWER'. Plaintiff has
further stated that he several times and ultimately by his Advocate's
notice dated 24.02.2018, called upon the defendant to pay the said
amount of Rs.64,495/ with further interest thereon @ 12% per annum,
from the respective dates of the bills till payment. Plaintiff has further
stated that the said notice dated 24.02.2018, forwarded to the
defendant by RPAD. The Postman of the concerned area's PostOffice
tried to serve the said RPAD Packet upon the defendant, however,
despite intimation given three dates viz. 05.03.2018, 06.03.2018 and
07.03.2018, the defendant failed and neglected to collect the said RPAD
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packet from Postoffice. Plaintiff has further stated that defendant have
thereby refused to accept the notice. Therefore, the said RPAD packet
containing said legal notice sent to defendant returned undelivered with
remark “refused”. Plaintiff has further stated that he repeated each and
every statement made on his behalf in the said correspondence.
Therefore, plaintiff filed the present suit.
3. Defendant failed to appear in the suit, therefore, suit has
proceeded exparte against him.
4. Heard the Ld. Advocate for the plaintiff.
5. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.64,495/ from
defendant along with interest @ 12%
p. a. on the same amount of
Rs.64,495/ from the date of filing of
the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
6. Plaintiff has filed evidence of himself below Exh.5 in the form of
affidavit. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.7 Two original Bills, bearing No.472 and 409
2. Exh.8 The original cheques issed by the defendant in
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plaintiff's favour
3. Exh.9 Xerox copies of Bankers intimated about the
dishonoured of the cheques vide intimation,
dated 2.11.2017
4. Exh.10 (i) Office copy of legal notice dated 28.02.2018
(ii) RPAD Receipt (iii) Inquiry letter to Post
Office, dated 10.04.2018, (iv) Track
Consignment
5. Exh.11 Original Bank Statement in respect of payment
of Rs.20,000/ by the defendant through RTGS
AS TO POINT NOS. 1 AND 2:
7. Plaintiff has filed evidence in the form of affidavit below Exh.5
and stated that his firm sold, supplied and delivered the Sarees of
various designs and fashion to the defendant from the year 2017, as per
order placed by the defendant, on credit basis and that during the
course of business transactions, the defendant has accepted said Sarees
on credit basis. Plaintiff has further stated that he has recorded the
number of Sarees and their respective costs, supplied to the defendant,
by issuing Debit Memos for two times and recorded the transactions, in
their Books of Account and debited the various sums as debited to
defendant's account in their Books of Account, truly and correctly.
Plaintiff has further stated that at no point of time the defendants raised
any dispute regarding quantity, quality and rates of the Sarees supplied,
and that by their act, there is no dispute about so far supplied Sarees
supplied to the defendant by the his firm.
8. Plaintiff has further stated that in the month of September 2017,
towards the receipt of goods so for supplied to the defendant, the
defendant issued three cheques against the bill No.472 dated
22.04.2017, drawn on State Bank of India, Indore Branch, drawn in his
favour, bearing (1) cheque No.277644, dated 09.09.2017, for
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Rs.15000/ (2) Cheque No.277645, dated 17.09.2017 for Rs.15000/
and (3) Cheque No.277646, dated 26.09.2017, for Rs.14145/, totaling
to the sum of Rs.44,145/. Moreover, for the bill No.409 dated
82.2017, having amount of Rs.20,350/ the defendants informed him
that he will make RTGS of that bill in his Bank Account, however, so far
he has failed and neglected to make the payment of that amount of
Rs.20,350/ also. He has further stated that he produced original Bill
No.472, dated 22.04.2017, for Rs.44145/ and Bill No.409 dated
08.02.2017, for Rs.20,350/.
9. Plaintiff has further stated that he further produced three
cheques issued by the defendants against the Bill No.472 dated
22.04.2017, drawn on State Bank of India, Indore Branch, drawn in his
favour, bearing (1) cheque No.277644, dated 09.09.2017, for
Rs.15000/ (2) Cheque No.277645, dated 17.09.2017 for Rs.15000/
and (3) Cheque No.277646, dated 26.09.2017, for Rs.14145/, totaling
to the sum of Rs.44,145/.
10. Plaintiff has further stated that said cheques were deposited by
him in his firm,'s Bank Account of UCO Bank, Kalbadevi Branch on
2.11.2017. However, to shock and dismay, the said cheques were
returned dishonoured from his firm's banker, with a remark, 'PAYMENT
STOPPED BY DRAWER'. Plaintiff has further stated that his Bankers
intimated him about the dishonoured of the said cheques vide
intimation, dated 2.11.2017, stating the reason of return as 'PAYMENT
STOPPED BY DRAWER'. Plaintiff has further stated that he has several
times and ultimately by their Advocate's legal notice dated 24.02.2018,
called upon the defendants to pay the said amount of Rs.64,495/ with
interest thereon @ 24% per annum, from the respective dates of the
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bills till payment. Plaintiff has further stated that the said notice dated
24.02.2018, forwarded to the defendants by RPAD, from RL
Madhavbaug S. O. bearing No. RM106717154IN, IVR8277106717154,
Counter No.2, dated 28.02.2018. Plaintiff has further stated that after
filing the present Summary Suit, the defendants made part payment by
depositing the cash in his UCO Bank Account, through RTGS on
10.09.2018 Rs.10,000/ and on 26.10.2018, Rs.10,000/ totaling to
Rs.20,000/. Plaintiff has further stated that since the defendants have
made payment of sum Rs.20,000/ out of amount of claim of
Rs.64,495/, as stated in above referred paras, the defendants are now
justly and truly liable to pay to him a sum of Rs.44,495/. Accordingly,
as of date, there is a liquidated amount aggregating to Rs.44,495/ due
and payable by the defendants to him with further interest thereon @
24% per annum, from the respective dates of the bills till payment.
Plaintiff has stated in evidence affidavit that he received Rs.20,000/
from defendant. Therefore, plaintiff has proved that he is entitled to get
sum of Rs.44,495/ from defendant.
11. Plaintiff has also produced original cheques issued by the
defendant in plaintiff's favour, Xerox copies of Bankers intimated about
the dishonored of the cheques, Office copy of legal notice, RPAD
Receipt, Inquiry Letter to Post Office, Track Consignment and Original
Bank Statement on record as documentary evidence. Defendant has
failed to challenge all the averments in the plaint and evidence of
plaintiff. The oral evidence of plaintiff is corroborated by documentary
evidence. Due to all these circumstances, plaintiff has proved that he is
entitled to get sum of Rs.44,495/ from the defendant.
12. It appears that as per Section 34 of the Code of Civil Procedure,
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it will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.44,495/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant is directed to pay amount of Rs.44,495/to plaintiff
along with interest @ 9% p.a. on the same amount of Rs.44,495/
from the date of filing of the suit till its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 01.04.2019. City Civil Court,
Gr. Bombay.
Dictated on : 01.04.2019
Transcribed on : 01.04.2019
Signed on : 01.04.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.04.2019 At 5:22 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
01.04.2019
Judgment/Order signed by P.O. on 01.04.2019
Judgment/Order uploaded on 20.04.2019
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