Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.760/2018
Received on : 24.06.2018
Registered on : 30.07.2018
Decided on : 04.05.2019
Duration : Y M D
00 10 11
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 760 OF 2018
CNR NO.: MHCC010071352018
Mr. Venkateshwararao Satyanarayana Masaram
Proprietor of M/s. Vishvak Creation
Hindu, Adult, Aged about 40 years, Indian
inhabitant, carrying out business at 162, 1 / 2,
Kamgar Nagar No.2, N.M. Joshi Marg,
New Prabhadevi, Dhan Mil Naka,
Mumbai – 400 013. ...Plaintiff
Versus
Nakshatra Collection
Having its office situated at
1114, M.C. Road, Ashok Nagar,
Mandya City – 571 401, Karnataka. ...Defendant.
Appearances:
Advocate Mr. Walavalkar for the Plaintiff.
Defendant Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 4th MAY, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that the defendant is Nakshatra Collection,
having its office situated at 1114, M.C. Road, Ashok Nagar, Mandya
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City 571 401, Karnataka, and is engaged in selling of the finished
garments along with the finished goods of the plaintiff after buying the
goods from the plaintiff.
2. Plaintiff has further stated that the defendant approached
plaintiff in Mumbai and thereafter the defendant bought the finished
goods of the plaintiff at Mumbai.
3. Plaintiff has further stated that the plaintiff then as per standard
practice dispatched the goods from Mumbai on 01.02.2017 through
cargo services situated at Mumbai. The Tax Invoice dated 01.02.2017,
bearing No.123, was sent in the name of M/s. Vishvak Creation, along
with the finished cargo goods and the cargo receipt. The Consignor
Copy of the cargo receipt was delivered to the plaintiff by the cargo
service.
4. Plaintiff has further stated that the defendant till date has made
part payment of Rs.2,50,000/ of the total Bill amount of Rs.3,31,500/
towards the account of the defendant with the plaintiff, leaving the
balance of Rs.81,500/, due and payable to the plaintiff by the
defendant. Therefore, the defendant has accepted and acknowledged
the total amount due and payable to the plaintiff by the defendant.
Therefore, Summary Suit is maintainable. The said fiscal transaction is
reflected in the Ledger Account of Nakshatra Collection in the computer
entry of the Proprietary Concern of the plaintiff. The said transaction is
also reflected in the Bank Statement of the Bank bearing the Account of
the plaintiff.
5. Plaintiff has further stated that the plaintiff contacted the
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defendant through telephonic medium to call for the payment of the
entire balance amount but availed no response. Thereafter, the plaintiff
sent Legal Notice dated 02.11.2017 through his Advocate to call upon
the defendant to make the payment of entire balance amount of
Rs.81,500/ . The plaintiff sent the Legal Notice through RPAD service
of Indian Post. The Registered Card is not received back by the plaintiff
due to some reasons. The plaintiff depends upon the Tracking
Consignment Report of the said item. The defendant has not replied to
the said Legal Notice dated 02.11.2017 till date. Therefore, it implies
that the defendant has accepted his liability to pay to the plaintiff the
sum of Rs.81,500/, which is the balance amount due and payable to
the plaintiff by the defendant. Therefore, plaintiff filed this suit.
6. Defendant failed to appear in the suit, therefore, suit has
proceeded exparte against defendant.
7. Heard the Ld. Advocate for the plaintiff.
8. 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
sum of Rs.98,608/ from defendant
alongwith interest @ 18% p. a. on
the principal sum of Rs.81,500/ from
the date of filing of the suit till its
realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
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REASONS
9. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.8 Original Copy of Tax invoice dated 01.02.2017 bearing
No.123.
2. Exh.9 Original Copy of the consignor V.R.L. Logistic
3. Exh.10 Computer Copy of Ledger Account of Nakshtra
Collection
4. Exh.11 Copy of Statement of Andhra Bank Sealed and signed by
bank Authority.
5. Exh.12 Office copy of Legal Notice dated 02.11.2017
6. Exh.13 Original copy of the Receipt of the RPAD Service.
AS TO POINT NOS. 1 AND 2:
10. Plaintiff has filed evidence of himself in the form of affidavit
below Exh.6 and he has stated in his evidence that then as per his order,
standard practice he dispatched the goods from Mumbai on 01.02.2017
through cargo services V.R.L. Logistics Ltd. situated at Mumbai. The Tax
Invoice dated 01.02.2017, bearing No.123 was sent in the name of M/S.
Vishvak Creation, along with finished goods and the cargo receipt. The
Consignor Copy of the cargo receipt was delivered to him by the cargo
service.
11. Plaintiff has further stated that the defendant till date has made
part payment of Rs.2,50,000/ out of the total Bill amount of
Rs.3,31,500/ towards amount due from the defendant to him, leaving
the balance of Rs.81,500/, due and payable to the him by the
defendant.
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12. Plaintiff has further stated that he has contacted the defendant
through telephonic medium calling upon the payment of the entire
balance amount, but there was no response from the defendant.
Thereafter, he has sent Legal Notice dated 02.11.2017 through his
Advocate calling upon the defendant to make the payment of entire
balance amount of Rs.81,500/.
13. Plaintiff has further stated that he seeks to recover a total sum of
Rs.98,608/ including the interest comprising of Rs.81,500/ as
principal amount and interest @ 18 p.a. amounting to Rs.17,108/.
14. Plaintiff has adduced Original copy of tax invoice, Original copy
of the consignor V.R.L. Logistic, Computer copy of the Ledger Account
of Nakshtra Collection, Copy of Statement of Andhra Bank Sealed and
signed by Bank Authority, Office copy of Legal Notice and copy of the
Receipt of the RPAD Service on record as documentary evidence. The
oral evidence of plaintiff is corroborated by documentary evidence.
Defendant has failed to challenge all the allegations in the plaint and
evidence of plaintiff. Therefore, plaintiff has proved that he is entitled
to get sum of Rs.98,608/ from defendant.
15. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.81,500/ 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 sum of Rs.98,608/ to plaintiff along
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with interest @ 9% p.a. on the principal sum of Rs.81,500/ 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: 04.05.2019. City Civil Court,
Gr. Bombay.
Dictated on : 04.05.2019
Transcribed on : 04.05.2019
Signed on : 04.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11.06.2019 At 1:27 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
04.05.2019
Judgment/Order signed by P.O. on 04.05.2019
Judgment/Order uploaded on 11.06.2019
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