Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 268/19. 1 Ex-parte Judgment (Exh.20).
MHCC010069922019
Presented on : 08-07-2019
Registered on : 18-12-2019
Decided on : 09-11-2021
Duration : 2 years, 4 months, 1 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 268 OF 2019
Exh.20.
Prabhat Steel Traders Pvt. Ltd. )
A Private Limited Company )
CIN: U52599MH2007PTC169524 )
Through its Authorized Person, )
Jignesh Dhirajlal Rajgor )
Age: 38 years, D.O.B. 24.04.1980; )
Occupation: Service; )
Gender: Male, Religion: Hindu, Indian Inhabitant;)
Aadhar Card No. 5151 0841 5774 )
Having address at: )
535, 5th Floor, Vyapar Bahvan 49, )
P D' Mello Road, Carnac Bunder, )
Mumbai – 400009 )
Contact No.: 9323785322 )
Email Id: jignesh@prabhatsteel.com )...Plaintiff
Versus
1. Shri Shiv Steel )
A Proprietary )
2. Shivraj Agarwal )
Owner / Proprietor, )
Age: Not known, Occupation: Business, )
Gender: Male, Religion: Unknown, )
Both Defendants having address at: )
Flat No. 204, 2nd Floor, Sai Sadan Apartment, )
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Comm.Suit No. 268/19. 2 Ex-parte Judgment (Exh.20).
Door no. 36667, Street No. 10, Himayat Nagar, )
Hyderabad – 500029 )
Contact No. 9618020367 / 04066388711 )
Email Id – shivsteels2000@gmail.com )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 9th NOVEMBER, 2021.
Mr. Narendra Devvansh, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a private limited company
represented by Constituted Attorney Jignesh Dhirajlal Rajgor.
Defendant no.1 is a proprietary firm owned by defendant no.2. The
plaintiff sold and supplied goods to the defendants as per their orders as
per Invoice No. 2415 dated 06/12/2015 worth Rs.10,21,992/. The
defendants made part payment and amount of Rs.8,96,582/ is balance.
The defendants had issued three cheques of the said amount as
described in para 5 of the plaint. When the said cheques were
presented to the plaintiff's bank i.e. Union Bank of India, Darukhana
Branch, they were returned with dishonour memos having endorsement
'Funds Insufficient' on 04/06/2018. The plaintiff filed case against the
defendants under Section 138 of the Negotiable Instruments Act in the
Court of M.M., 23rd Court, Esplanade. The plaintiff prayed for recovery
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Comm.Suit No. 268/19. 3 Ex-parte Judgment (Exh.20).
of Rs.14,58,333/ (including principal amount of Rs.8,96,582/ and
interest at the rate of 21% p.a. from due date). He also prayed for
further interest at the rate of 21% p.a. on principal amount of
Rs.8,96,582/ from the date of filing of the suit till realization.
3. The defendants were duly served with writ of summons as
per affidavit of service (Exh.7), but they failed to appear and oppose the
claim of the plaintiff. Therefore, my learned Predecessor passed the ex
parte order against them, on 09/02/2021.
4. PW 1 Jignesh deposed on evidence affidavit (Exh.8) and
proved documents filed with list of documents (Exh.9). Proved
documents are at Exh.10 to 17. The plaintiff closed evidence vide
pursis (Exh.18). Heard learned counsel Shri Narendra Devvansh for the
plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.14,58,333/ (including principal
amount of Rs.8,96,582/ and interest at
the rate of 21% p.a. from due date) ? In the Affirmative.
2. Whether the plaintiff proves that he is
entitled to recover interest on the
principal amount of Rs.8,96,582/ from
the date of the suit till realization ? If
yes, at what rate of interest ? In the Affirmative @
12% p.a.
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Comm.Suit No. 268/19. 4 Ex-parte Judgment (Exh.20).
3. What order as to cost ? As per final order.
4. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
6. PW 1 Jignesh has deposed that he has been authorized by
the plaintiff as per Board Resolution dated 16/07/2018 (Exh.11). He
further stated about goods sold and supplied to the defendants as per
Invoice dated 06/12/2015 (Exh.12). He further proved consignment
note (Exh.13). He also proved three cheques issued by the defendants
as Exh.14 colly. Total of these cheque amounts is equal to the principal
amount claimed by the plaintiff. These cheques are issued on
14/05/2018 and they are dishonoured on 04/06/2018. The plaintiff
has issued notice dated 28/06/2018 under Section 138 of the
Negotiable Instruments Act (Exh.15) to the defendants. The said notice
was duly served upon the defendants as per acknowledgment and track
report (Exh.17 colly.). Issuance of cheques in discharge of liability is an
acknowledgment on the part of the defendants. Therefore, limitation to
file the suit gets extended by virtue of Section 18 of the Limitation Act,
1963. Even otherwise, the said cheques also provide a cause of action
for filing the suit. It is clear from claim of the plaintiff regarding
principal amount based upon the cheques issued by the defendants that
he is entitled to recover the principal amount.
7. So far as rate of interest is concerned, the plaintiff has
relied upon invoice (Exh.12) as per which interest at the rate of 21%
will be charged after due date. The plaintiff has relied upon
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Comm.Suit No. 268/19. 5 Ex-parte Judgment (Exh.20).
observations of Hon'ble Supreme Court in para 12 in the case of M/s.
TVS Skyshop Ltd. V/s. M/s. Reliance Communication and
Infrastructure Ltd. (Civil Appeal No. 5487/2013 decided on
15/07/2013) which reads as under :
“12. Equally meritless is the argument of Shri
Thawani that the rate at which the respondent
claimed interest is highly excessive. According to
Shri Jaideep Gupta with whom we agree, the
interest was charged as per the terms of the
agreement and the appellant had always paid the
bills in which interest was claimed at the rate of
30% per annum.”
8. He also relied upon the judgment of Hon'ble Bombay High
Court in the case of Dongreen Resins & Chemicals Private Limited
V/s. Balaji Fiber Reinforce Pvt. Ltd. (Summons For Judgment No.
261/2012 in Summary Suit No. 1378/2012 decided on
01/10/2012) and referred para 8 in it. Learned counsel Shri Narendra
Devvansh submitted that the purchase order alongwith the invoices and
delivery chalan constitute written contract between the parties as per
observations in para 8 of this citation.
9. In the context of rate of interest, Hon'ble Supreme Court
has observed in para 55(8) in the case of Central Bank of India V/s.
Ravindra and Others (2002) 1 SCC 367 as under :
“(8) Award of interest pendente lite and postdecree
is discretionary with the court as it is essentially
governed by Section 34 CPC dehors the contract
between the parties. In a given case if the court finds
that in the principal sum adjudged on the date of the
suit the component of interest is disproportionate
with the component of the principal sum actually
advanced the court may exercise its discretion in
awarding interest pendente lite and postdecree
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Comm.Suit No. 268/19. 6 Ex-parte Judgment (Exh.20).
interest at a lower rate or may even decline awarding
such interest. The discretion shall be exercised fairly,
judiciously and for reasons and not in an arbitrary
or fanciful manner.”
10. Observations in the concluding part of the M/s. TVC
Skyshop Ltd.'s case (cited supra) are restricted to facts and
circumstances of that particular case and it does not lay down the law
that the interest must be awarded as per the terms of the agreement.
Observations in the case of Central Bank of India (cited supra) states
about discretion of the court in granting pendente lite and postdecree
interest.
11. Wording of proviso to Section 34 of the CPC confers
discretionary right upon the court to grant interest exceeding 6% and
up to the extent of contractual rate of interest. There is only one
negative condition preventing the court from granting interest beyond
the contractual rate of interest. Such negative condition in the proviso
to Section 34 of the CPC cannot be interpreted as granting of interest at
the contractual rate is mandatory. In the light of clear legal position,
the court can exercise the discretion while granting pendente lite and
postdecree interest within limits laid down in Section 34 of the CPC.
12. In the light of above discussion on legal aspect pertaining
to rate of interest, the plaintiff is entitled to get interest at the rate of
21% p.a. as mentioned in the invoice (Exh.12) till the date of filing of
the suit. Therefore, the plaintiff is entitled to get the amount of
Rs.14,58,333/ (which includes principal amount and interest at the
rate of 21% p.a. till the date of the suit). With regard to pendente lite
and future interest, it is necessary to exercise discretion because interest
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Comm.Suit No. 268/19. 7 Ex-parte Judgment (Exh.20).
rate mentioned in the invoice is exorbitant and it is beyond normal
range of interest imposed in commercial transactions. Accordingly,
interest at the rate of 12% p.a. is going to be awarded on the principal
amount from the date of the suit till the date of its realization. Costs of
the suit is liable to be imposed on the defendants. In the light of above
discussion, I record my findings as to point no.1 in the affirmative. I
also record finding as to point no.2 in the affirmative with interest rate
as discussed above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 268/2019 is partly decreed.
2. The defendants are directed to pay amount of
Rs.14,58,333/ (Rupees Fourteen Lakhs Fiftyeight
Thousand Three Hundred Thirtythree Only) to the plaintiff
within three months from the date of decree.
3. The defendants are further directed to pay interest at the
rate of 12% p.a. on principal amount of Rs.8,96,582/ from
the date of the suit till realization.
4. The defendants shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 09/11/2021. Mumbai.
1. Dictated online on : 09/11/2021.
2. Signed on : 09/11/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 268/19. 8 Ex-parte Judgment (Exh.20).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/11/2021. 5.41 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 09/11/2021.
Judgment/Order signed by P.O. on 09/11/2021.
Judgment/Order uploaded on 09/11/2021.
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