Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 252/21. 1 Exparte Judgment.
MHCC010072832018
Presented on : 19.06.2018
Registered on : 16.07.2018
Decided on : 21.08.2021
Duration : 03 years, 02 months, 02 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 252 OF 2021
Exh11.
M/s. Chetana Book Depot, )
a partnership firm, having its registered )
office at 4th Floor, 'B' Wing, Building 'E', )
Trade Link, Kamla City, Above Bombay )
Canteen, Lower Parel, Mumbai 400 013 ) ....Plaintiff
Versus
Shri Daman Nehra, )
An Adult & Age not known )
proprietor of Pratibha Books Promoters & )
Distributors, )
carrying on B55B, Satyam Apartment, )
Shalimmar Garden, Ext11, )
Near ESI hospital, Saihbabad, )
U.P. 201005 ) ....Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 21st AUGUST, 2021.
Mr. Sudhakar G. Lakhani, Advocate for the plaintiff.
Ms. Gauri Rao, Advocate for the defendant absent. (No W.S.).
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Comm.Suit No. 252/21. 2 Exparte Judgment.
JUDGMENT (EXPARTE)
1. This is the suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is engaged in the business of selling
books. The defendant is the proprietor of Pratibha Books Promoters &
Distributors carrying business of educational books at Saihbabad, U.P.
The plaintiff had sold and supplied books through transporter New
Surat Roadlines and Neeraj Roadlines to the defendant as per his orders
from 2016 to May 2017. The plaintiff had submitted invoices to the
defendant from time to time. These invoices contain stipulation that
interest at the rate of 18% p.a. would be charged in case of payment
made after 30 days from the date of invoice. Meanwhile, the defendant
had made part payment in respect of goods supplied by the plaintiff.
The defendant had also returned goods from time to time and the
plaintiff had issued credit notes in respect of the same. As the
defendant failed to make payment of balance amount of Rs.29,08,896/
due as on 07/11/2017, the plaintiff issued notice to him through his
advocate on 15/12/2017 making demand of the due amount.
Subsequently, the defendant returned goods worth Rs.1,52,531/ and
the plaintiff debited a sum of Rs.2,446/ on 13/01/2018. Accordingly,
amount of Rs.27,55,758/ remained to be recovered from the defendant
as on 22/01/2018. The plaintiff claimed interest of Rs.4,34,881/ on
this amount at the rate of 18% p.a. from due date of the said invoices
till the date of filing of the suit. In addition to it, he sought interest at
the rate of 18% p.a. on principal amount of Rs.27,55,758/ from the
date of filing of the suit till the date of payment. He also sought costs of
the suit.
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Comm.Suit No. 252/21. 3 Exparte Judgment.
3. The defendant was duly served with writ of summons as
per affidavit of service (Exh.4) and acknowledgement annexed thereto.
Adv. Gauri Rao appeared on behalf of the defendant and filed
vakalatnama (Exh.2) on 06/08/2018. As the defendant failed to file
written statement within stipulated period, the suit was proceeded
without written statement as mentioned in roznama dated 05/10/2018.
4. The plaintiff filed evidence affidavit of Constituted Attorney
Shaji John (Exh.5). The plaintiff also proved total 35 invoices (Exh.7
colly.), copy of statement in the books of accounts of the plaintiff
relating to the defendant for the period from 01/04/2017 to
31/03/2018 (Exh.8) and office copy of the notice with postal
acknowledgement (Exh.9 colly.) The plaintiff closed the evidence vide
pursis (Exh.10). Heard learned counsel Shri Sudhakar G. Lakhani for
the plaintiff at length.
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. Whether the plaintiff proves that he is
entitled to recover principal amount of
Rs.27,55,758/ with interest of
Rs.4,34,881/ from the defendant ? In the Affirmative.
2. Whether the plaintiff proves that he is
entitled to recover interest at the rate of
18% p.a. on the principal amount of
Rs.27,55,758/ ? In the Affirmative.
3. What order as to cost ? As per final order.
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Comm.Suit No. 252/21. 4 Exparte Judgment.
4. What order and decree ? Suit is decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
6. On perusal of contents in evidence affidavit (Exh.5), it
appears that the plaintiff stated about business dealings with the
defendant. He has specifically deposed that he had sold and supplied
goods to the defendant from 2016 to May 2017 and invoices were
submitted to the defendant. He has specifically deposed that amount of
Rs.27,55,758/ is due to be recovered from 12/06/2018. He has
claimed interest at the rate of 18% p.a. on the principal amount. He
has calculated principal amount plus interest as Rs.31,90,639/ till the
date of filing of the suit. Invoices (Exh.7) supports to the oral evidence
of the plaintiff regarding business dealings with the defendant. All
these invoices are having received signatures with stamp of the
defendant. Therefore, there is no scope for the defendant to dispute the
aspect of delivery of goods made to him by the plaintiff. Statement of
accounts (Exh.8) is maintained in due course of business and it has
details of amount to be recovered from the defendant and payments
made by him from time to time. It is pertinent to note that the
defendant received notice dated 15/12/2017 (Exh.9), but he failed to
reply it. It means that the defendant had proper intimation regarding
claim of the plaintiff, but he failed to rebut the same either by giving
reply to the notice or by opposing the claim of the plaintiff made in the
suit. Evidence of the plaintiff is unchallenged. It is duly supported with
documents on record. Therefore, the plaintiff has succeeded in
establishing the claim regarding the principal amount as well as interest
claimed thereon.
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Comm.Suit No. 252/21. 5 Exparte Judgment.
7. So far as question of interest on the principal amount from
the date of suit till its realization is concerned, stipulations mentioned
in invoices (Exh.7) will bind the parties. It has been specifically stated
in clause no.6 at the bottom of invoices that interest at the rate of 18%
p.a. will be charged if payment is made 30 days after date of invoice.
As the defendant has made received signatures on all these invoices in
the due course of transaction and he has not disputed stipulation
printed at the bottom of these invoices, he is bound to obey those
stipulations being agreed terms and conditions of the transaction
between the parties. As it is commercial transaction and there is
written stipulation as to rate of interest to be applied on principal
amount, there is no reason to deviate from agreed rate of interest
between the parties and to make fluctuation in it. Accordingly, interest
at the rate of 18% p.a. is liable to be granted on principal amount from
the date of suit till its realization.
8. Considering nature of transaction and failure of the
defendant to discharge his liability at the earlier point of time, cost of
the suit is liable to be saddled on his shoulder. For all above reasons, I
record my findings on points no. 1 and 2 in the affirmative. Hence, I
pass the following order :
ORDER
1. Commercial Suit No. 252/2021 is decreed.
2. The defendant is directed to pay amount of Rs.31,90,639/
(Rupees Thirtyone Lakhs Ninety Thousand Six Hundred Thirty
nine Only) (principal amount of Rs.27,55,758/ with interest of
Rs.4,34,881/) to the plaintiff within three months from the date
of decree.
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Comm.Suit No. 252/21. 6 Exparte Judgment.
3. The defendant is further directed to pay interest @ 18% p.a. on
the principal amount of Rs.27,55,758/ to the plaintiff from the
date of filing of the suit till its realization.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 21/08/2021. Mumbai.
1. Dictated on : 18/08/2021.
2. Transcribed on : 20/08/2021.
3. Signed on : 21/08/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/08/2021. 3.07 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 21/08/2021.
Judgment/Order signed by P.O. on 21/08/2021.
Judgment/Order uploaded on 23/08/2021.
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