Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm.SU No.1452021
MHCC010071332018
Presented on : 14062018
Registered on : 16082018
Decided on : 06122021
Duration : Y03, M05, D22
IN THE CITY CIVIL COURT AT GREATER BOMBAY
COMMERCIAL SUIT NO.145 OF 2021
M/s. H.R. Organo Chem Pvt. Ltd., ]
A company incorporated and registered ]
under the Companies Act 1956, and having its ]
Registered office at 110114, Rewa Chambers ]
31, New Marine Lines, Mumbai400 020 ]...Plaintiff
V/s
Akhil Raj
Sole Proprietor of M/s J & R Associates (N), ]
having office at Door No.KP.11/454, ]
KurikkathoorKunnamangalam, ]
MIEPO, Calicut673 571 ]...Defendant
APPEARANCE:
Adv. Udaya Sankar Samudrala for the plaintiff.
Defendant Exparte.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 06th December, 2021
EXPARTE JUDGMENT
This is suit under Section 2(1)(c)(i) of the Commercial
Courts Act, 2015 for recovery of amount from the defendant against the
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materials sold, supplied and delivered by the plaintiff to the defendant.
In brief, the plaintiff's case is as under :
2. The plaintiff is a Private Limited Company, engaged in
manufacturing and selling chemicals and chemical products. The
defendant is the sole proprietor of M/s. J.R. Associates (N), who is
dealing in chemicals and chemical products. From time to time, the
defendant has purchased Titanium Dioxide Rutile LCR821 from the
plaintiff. On 20.09.2016 and 31.10.2016, the plaintiff has sold, supplied
and delivered said chemicals to the defendant. Accordingly, invoices for
amount of Rs.3,12,610/ and Rs.3,08,060/ were raised. The defendant
has accepted the delivery of these goods without any demur. The
defendant was liable to make payment within 30 days from the date of
invoice. The defendant has made part payment of Rs.25,000/ against
the total due Rs.6,20,670/. Therefore, balance amount of
Rs.5,95,670/ is due and payable by the defendant to the plaintiff.
3. The defendant was required to furnish 'C' Forms, but has
failed to furnish it. Due to same, the Government authorities levied tax,
interest and penalty. The plaintiff was required to make payment of the
same. Due to noncompliance of the defendant, there will be liability of
Rs.1,96,396.52/ towards levy of interest and penalties. The defendant
is liable to furnish 'C' Forms or in default liable to pay for reimburse the
interest and penalties which may be levied by the Government.
4. The plaintiff by notice dated 22.11.2017 called upon the
defendant to make payment of Rs.5,95,670/ with interest at the rate of
24% p.a. from the date of invoices. The defendant, failed to make the
payment. The plaintiff also called upon the defendant to furnish Form
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'C' or to pay Rs.1,39,630.85. By its reply dated 27.12.2017, the
defendant claimed that there were defects in quality of goods. It is also
alleged that the plaintiff's representative has agreed to settle the
amount for 50% of the invoice. It is further alleged that the defendant
has not made the payment of Rs.2,85,335/ as the defendant did not
receive the terms in writing. The defendant has shown the interest in
making payment of Rs.2,85,335/ as settlement amount. The plaintiff
has replied said letter of the defendant and called upon the defendant
to make the payment of Rs.5,95,670/ and also to make compliance of
'C' forms. The defendant has received said letter but failed to make the
payment. Hence, the plaintiff by filing this suit has prayed for decree in
sum of Rs.7,98,197/ alongwith interest at the rate of 24% p.a. on
principal amount of Rs.5,95,670/ from the date of filing of this suit till
realisation. The plaintiff also prayed for decree directing the defendant
to comply with furnishing 'C' form or to pay Rs.1,96,396.52.
5. By my Predecessor's order dated 22.04.2021, the suit is
proceeded exparte against the defendant.
6. Heard the learned Advocate for the plaintiff. No argument
of the defendant. Points for determination along with my findings
thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiff proves that the
defendant has purchased material
amounting Rs.6,20,670/ from the plaintiff?
Yes
2. Whether the plaintiff proves that the
defendant has failed to pay due amount of
Rs.5,95,670/?
Yes
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3. Whether the plaintiff is entitled to recover
amount of Rs.7,98,197/ alongwith interest
@ 24% p.a. on principal amount of
Rs.5,95,670/?
Yes
4. Whether the plaintiff is entitled for the
reliefs in respect of directions against the
defendant to comply with respect to the
submission of form C or in default to pay
Rs.1,96,396.52?
No
5. What order and decree? Suit is partly decreed
REASONS
AS TO POINT NOs.1 TO 3:
7. Point Nos.1 to 3 are interlinked with each other, hence they
are taken together for consideration. The plaintiff has examined Aelred
(PW1) at Exh.06. He deposes in support of the contentions made in the
plaint. The tax invoices at Exh.9 and 11 show that the plaintiff has sold
to the defendant Titanium Dioxide Rutile LCR821 amounting to
Rs.3,12,610 and Rs.3,08,060/ (Total amount Rs.6,20,670/). The
cosigner copy at Exh.10 and 12 shows that these goods are delivered
through said cosigner to the defendant. By notice reply dated
27.12.2017 Exh.16 the defendant has admitted the delivery of these
goods. It is contented therein that said material was adulterated. The
invoices on record at Exh,.09 and 11 shows that these products are sold
to the defendant on 20.09.2016 and 30.10.2016. By notice reply Exh.16
in the month of December, 2017 for the first time the defendant has
disputed about the quality of the goods sold by the plaintiff to the
defendant.
8. In view of Section 42 of the Sale of Goods Act, 1930 the
defendant was expected to communicate about the rejection of the
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goods within reasonable time. The communication made by the notice
reply dated 27.12.2017 of the goods sold on 20.09.2016 and
30.10.2016 is not within reasonable time. Communication about quality
of goods by notice reply is afterthought. Hence, it is deemed that the
defendant has accepted the goods without any demur. Therefore, he is
liable to make payment for the same.
9. It is the contention in the notice reply of the defendant that
the plaintiff's representative has decided to settle the amount for 50% of
amount of invoices. No such document to that effect is placed on record
by the defendant. Hence, it is not acceptable that there was such
settlement agreement. Record shows that the defendant has purchased
goods from the plaintiff. The cost of said goods is Rs.6,20,670/. As
admitted by the plaintiff, the defendant has made part payment of
Rs.25,000/. Hence, the defendant is liable to pay the balance amount
of Rs.5,95,670/.
10. As per the agreed terms on invoice, the interest claimed @
24% is fair. Hence, the defendant is liable to pay amount of
Rs.5,95,670/ with interest @ 24% p.a. Hence, the defendant is liable to
pay the amount of Rs.7,98,197/ alongwith interest @ 24% p.a on
principal amount of Rs.5,95,670/ from the date of filing of suit till
realisation. I answer point Nos.1 to 3 accordingly.
AS TO POINT NO.4:
11. Except the statement of the penalty for noncompliance as
to submission of C form, there is no other document on record to show
that the plaintiff has already incurred said amount for default by the
defendant. The plaintiff has not produce any notice or demand from the
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Government directing it to deposit said amount. Hence, the relief
claimed in that regard cannot be granted. In the result, I answer point
No.4 in the negative.
AS TO POINT NO.5 :
12. In view of my findings recorded against point Nos.1 to 4,
the suit is required to be partly decreed with costs. As the defendant has
compelled the plaintiff to file this suit, the defendant shall bear costs of
this suit. In the result, in answer to point No.5, I pass the following
order.
ORDER
1. Suit is partly decreed with costs.
2. The defendant do pay to the plaintiff the amount of
Rs.7,98,197/(Rupees Seven Lakh Ninety Eight Thousand
One Hundred Ninety Seven Only) alongwith interest at
the rate of 24% per annum on the principal amount of
Rs.5,95,670/ (Rupees Five Lakh Ninety Five Thousand
Six Hundred Seventy Only) from the date of filing of suit
till realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 06.12.2021 Mumbai.
Dictated directly on computer on : 06.12.2021
Typed on : 06.12.2021
Signed by HHJ on : 07.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.12.2021 at 5.27 p.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
06.12.2021
Judgment/order signed by P.O. on 07.12.2021
Judgment/order uploaded on 08.12.2021
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