Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010071102019
Presented on 21.06.2019
Registered on 08.07.2019
Decided on 29.02.2020
Duration Yrs. M. Days
00 08 08
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO.50 OF 2019
M/s. Prachi Steels,
A Proprietorship Firm through its Sole
Proprietor Mr. Ashok Kumar Garg having its
office at Plot No.101 and 102, 2nd Lane,
Darukhana, Reay Road, Mumbai – 400 010.
...Plaintiff.
V/s.
1. M/s. Crown Engineering Works
a Proprietorship Firm,
having its address at Sharad Industrial
Estate, Unit No.F-15, Lake Road,
Bhandup (W), Mumbai – 400 078.
Tel.No.022-25947941/25947153
And also at: A-501, Runwal Tower,
New Santoshi Mata Mandir, LBS Marg,
Mulund (W), Mumbai – 400 080
MHCC01-007110-2019
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2. Mr. Sarvjeet Singh Virdi (Saby)
an Adult Indian Inhabitant Proprietor of
M/s. Crown Engineering Works
A-501, Runwal Tower, New Santoshi Mata
Mandir, LBS Marg, Mulund (West),
Mumbai – 400 080
Mobile No.-9819771414, ...Defendants.
Appearances:
Ld. Adv Ms. Archana Lad I/b B.K. Barve and Company for plaintiff.
Suit proceeded ex-parte against defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G. BORLEPWAR
(C.R.No.20)
DATED : 29th February, 2019
J U D G M E N T
(Ex-parte)
1. This is a suit for recovery of loan amount.
2. Plaintiff filed this suit for recovery of loan amount
alongwith interest.
3. In brief, it is contention of the plaintiff that plaintiff is
proprietorship Firm. It carries on business of supply of iron and steel
and also deals in steel market at Mumbai and at Thane etc. Plaintiff
also deliveries iron and steel materials as per orders placed by various
traders and dealers throughout the Country.
4. Defendant No.1 M/s. Crown Engineering Work is a
Proprietorship Firm. Defendant No.2 is Sole Proprietor of defendant
No.1. Mr. Ashok Sohanlal Garg, is Sole Proprietor of the said Firm.
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Defendant No.1 through defendant No.2 placed the orders with the
plaintiff's to supply the iron and steel materials which were required by
them for their fabrication works and other works conducted by the
defendants.
5. Defendant No.1 through the defendant No.2 approached
the plaintiff in or about January, 2018 and placed the purchase orders
for supply by M.S. Plates being the iron and steel materials by
telephonic communication. The plaintiff agreed to supply the said
material. Plaintiff supplied and delivered the said materials which is
received by the defendants. The defendants received materials for a
sum of Rs.14,71,708/- (Rs. Fourteen Lacs Seventy one Thousand Seven
Hundred and Eight only).
6. Plaintiff requested vide E-mail dated 01.09.2018 and
11.09.2018 the defendants to release the outstanding payment of
Rs.14,71,708/-. Defendants issued two cheques for a sum of
Rs.8,00,000/- and Rs.6,71,708/-. Both the cheques were dishonoured
when presented for encashment. Defendants are liable to pay interest
@ 36% p.a. on the said amount. Hence, suit be decreed as prayed for.
7. The suit is proceeded ex-parte as per Roznama dated
10.10.2019 . Plaintiff examined PW 1 Ashok Kumar Sohanlal Garg who
is Proprietor of plaintiff Firm. Deposition of P.W.1 Ashok Kumar
Sohanlal Garg is at Exh.3. He relied upon documents which are filed
list vide Exh.4.
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8. I have heard Learned Advocate appearing for the plaintiff.
The PW 1 supported the contentions raised in the plaint. He states that
defendants placed the order of the said materials and plaintiff supplied
the same. The defendant did not pay the said amount of
Rs.14,71,708/-. Cheque issued by the defendants were dishonoured
therefore, he lastly prayed to decreed the suit in terms of the prayer
Clause of the plaintiff. Perused delivery challan Exh.5, Weighbridge
receipt Exh.6, Proprietor receipt Exh.7 and 8. I have also perused Tax
Invoice Exh.9, delivery challan Exh.10. Perused E-mail Exh.29. Perused
Notice dated 01.11.2018 this address to both the defendants. It is
mentioned therein that plaintiff supplied the said materials and total
outstanding amount is of Rs.14,71,708/-. It is mentioned in the said
Notice to make payment of the said amount alongwith interest @ 36%
p.a. Perused original Cheque Exh.30. It is dated 19.10.2018. It is of
Rs.8,00,000/-. Perused original cheque Exh.32 of Rs.6,71,708/-. It is
also dated 19.10.2018. perused cheque returned Memo Exh.31 and 33.
Both the cheques are returned back without encashment. There is
nothing on record to discard the contention of plaintiff that plaintiff
supplied the said material on credit and defendants failed to pay said
outstanding amount of Rs.14,71,708/-. There is no material on record
to disbelieve the contention of the plaintiff regarding outstanding
amount of Rs.14,71,708/-.
9. It is contention of the plaintiff that defendants are liable to
pay interest @ 36 % p.a. on the invoice bill amount and if the said bill is
not paid immediately upon receipt of tax invoices then the defendants
are liable to pay the interest @ 36% p.a. on the outstanding due
amount. It is also contention of the plaintiff that plaintiff is entitled for
decree against the defendants for a sum of Rs.14,71,708/- along with
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further interest @ 18% p.a. or in other rate as this Court deems fit and
proper. According to the plaintiff material for Rs.1,64,897/- is delivered
to the defendants on 23.01.2018. Material for Rs.1,39,441/- is
delivered to the defendants on 26.02.2018. Material for Rs.3,42,030/- is
delivered to the defendants on 08.03.2018. Material for Rs.1,66,663/- is
delivered to the defendants on 12.03.2018. Material for Rs.6,58,677/- is
delivered to the defendants on 20.03.2018. In this way according to
the plaintiff total amount of Rs.14,71,708/- is outstanding against the
defendants. According to the plaintiff, plaintiff is entitled to charge
interest @ 36% p.a. on the invoices total bill amount of Rs.14,71,708/-.
According to the plaintiff defendants are liable to pay a total amount of
Rs.21,33,977/- on the date of filing of the suit which includes principal
amount of Rs.14,71,708/- and interest amount of Rs.6,62,269/-.
According to the plaintiff it is entitled to charge further interest @ 18%
p.a. on the principal amount of Rs.14,71,708/- from the filing of the
suit till its full realization. Perused tax invoice Exh.9. It is dated
23.1.2018. It is mentioned therein that @ 36% interest will be charged
on overdue bills. There are five tax invoices. They are vide Exh.9, 4,
18, 23 and last one Exh.28. All the Sale tax invoices having note that
36% interest will be charged on overdue bills. Nothing is on record to
show that defendants admitted 36% rate of interest on overdue bills,
therefore it can not be concluded that plaintiff is entitled to charge
interest @ 36% p.a. on the amount of invoices.
10. Perused Section 34 of the Code of Civil Procedure. It states
where and in so far as a decree is for the payment of money, the Court
may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of
the suit to the date of the decree, in addition to any interest adjudged
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on such principal sum for any period prior to the institution of the suit,
with further interest at such rate not exceeding six percent per annum,
as the Court deems reasonable on such principal sum, from the date of
the decree to the date of payment, or to such earlier date as the Court
thinks fit;
11. Proviso of Section 34 of the Code of Civil Procedure states
that where the liability in relation to the sum so adjudged had arisen
out of a commercial transaction, the rate of such further interest may
exceed six percent per annum, but shall not exceed the contractual rate
of interest or where there is contractual rate, the rate at which moneys
are lent or advanced by nationalized banks in relation to commercial
transactions.
12. After going through the plaint and evidence, documents
and evidence of plaintiff, I am of the opinion that there is no contractual
rate of interest between the parties on amount of invoices of overdue
against the defendants.
13. Transactions between the parties is the commercial
transaction. Hence, I am of the opinion that plaintiff is entitled for at
the rate of 9% p.a. from filing of the suit i.e. from 21.06.2019 on which
date the suit is lodged and on the amount of Rs.14,71,708/- till its full
realization. Therefore suit is liable to be decreed as per final order.
ORDER
The suit is decreed with costs as under :
1. The Defendant no. 1 and 2 jointly and severally to pay to the
plaintiff amount of Rs.14,71,708/- (Fourteen Lacs Seventy One
Thousand Seven Hundred and Eight Only) with interest at the
rate of 9% per annum from the date of filing the suit i.e.
21/06/2019 till it's full realisation.
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2. Decree be drawn-up accordingly.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 29/02/2020 City Civil Court, Gr. MUMBAI
Dictated on : 29/02/2020
Transcribed on : 04/03/2020
Checked on : 21/03/2020
Due to Covid-19 lockdown, the
Court was not functioning and
therefore Signed on : 12/06/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
12.06.2020 at 04.30 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 29.02.2020
Judgment/order signed by P.O. on 12.06.2020
Judgment/order uploaded on 12.06.2020
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