Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Received on : 23.07.2019
Registered on : 23.07.2019
Decided on : 13.01.2020
Duration : 0Y.05M.21D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO.732 OF 2019
(CNR NO. MH CC010073002019)
Exhibit11
Bharat Sakalchand Jain.
Age.: 46 years, Occ.: Business,
carrying on business at a Sole Proprietor in
the name and style of T.J.Jwellers
at 56, Khoja Kasam Building, 2nd Floor,
Room No.32, Near K.E.M.Hospital,
Parel, Mumbai – 400 012. ….Plaintiff.
..Versus..
G.Kiran Kumar.
Age.: not known, Occ.: Business,
carrying on business at a Sole Proprietor in
the name and style of Sree Varalakshmi Jewellers,
and from 72394/A, Ashok Nagar,
Pot Market, Secunderabad – 500 003, Telangana. ...Defendant.
SUIT FOR RECOVERY OF Rs.2,94,668.77ps.
Appearance:
Mr.Ramesh Jain, Advocate for the Plaintiff.
Exparte against Defendant.
CORAM : HER HONOUR JUDGE
SABIHA. G. SHAIKH
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.59).
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DATE : 13 th January, 2020
: J U D G M E N T :
1. This is a summary suit under order XXXVII of Code of Civil
Procedure 1908.
2. The facts of the suit are summarized as under :
The plaintiff is carrying on Jewellery Business of sole proprietor in
his name and style of T.J. Jewellers, at 56, Khoja Kasam Building, 2nd
Floor, Room No.32, Near KEM Hospital, Parel, Mumbai – 400 012. The
defendant is engaged in carrying on jewellery business of sole
proprietor in the name and style of Sree Varalakshmi Jewellers at
Secunderabad, Telangana. Pursuant to the purchase Order received
from the Defendant at Plaintiff's aforesaid place of business situated at
Mumbai, plaintiff sold, supplied and delivered gold ornaments worth
total sum of Rs.15,88,980/ to the Defendants against plaintiff's six tax
invoices i) No. SG 8 dated 30/12/2017 for Rs.3,02,000/ ii) No. SG 12
dated 30/01/2018 for Rs.3,14,900/ iii) No.SG 15 dated 28/02/2018
for Rs.3,11,000/ iv) No. SG.12 dated 01/07/2018 for Rs. 3,15,450/ v)
No.36 dated 03/12/2018 for Rs. 1,77,360/ and vi) No. SG40 dated
26/12/2018 for Rs.1,68,270/ against the 30 days credit payment basis
as provided on defendant's purchase orders which were duly accepted
and acknowledged by the defendant. It is further submitted that the
defendants made partpayment of Rs.13,51,350/ to the plaintiff and
the defendants failed to pay the balance sum of Rs.2,37,630/. Hence,
plaintiff is constrained to file the suit for recovery of the said amount.
The total suit claim of the plaintiff for Rs.2,94,668.77ps.
3. The suit summons were duly served on the defendants No.1 to 3
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but they failed to appear. Hence, suit is posted for judgment as per
order XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
4. The following points arise for my determination and my findings
thereon are as under for the reasons stated there under:
Sr.
No.
POINTS FINDINGS.
1. What is due and payable
from the defendant to the
plaintiff ?
A] If yes, what would be the
rate of interest?
Amount of
Rs.2,94,668.77
at the rate of 10%
per annum
2. What order and decree? As per final order.
REASONS
5. In order to prove the case of the plaintiff filed following
documentary evidence.
Exhibit.
No.
Description of documents Date
Exhibit.7
(collectively)
These documents are Invoice
No. SG8, No. SG12, SG15,
SG12, SG36 and SG40.
Dated
30/12/2017,
30/01/2018,
28/02/2018,
01/07/2018,
03/12/2018 and
26/12/2018
respectively
Exhibit. 8 This document is a legal
notice issued by plaintiff's
advocate along with postal
acknowledgment
dated.
27/04/2019
Exhibit .9 This document is a letter
issued by defendant's
advocate
dated 03.05.2019
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Exh. 11 These documents are of
records in connection with
the delivery of goods
including lorry receipt other
records in connection there
with
AS TO POINT NO.1
6. All the documents produced by the plaintiff at list Exhibit – 7, 8, 9
and 10 goes to establish that plaintiff has taken purchase order and
delivered the total goods of Rs.15,88,980/ to defendant. The
documents further prove that the amount of Rs.2,94,668.77 is due and
payable to the plaintiff from defendant on the date of the filing of the
suit. The defendant has failed to pay balance amount of Rs.
2,94,668.77 towards purchase of goods. The documents at list Exhibit
7 to Exhibit 10 goes to establish that defendant is liable to pay
Rs.2,94,668.77 to the plaintiff on the date of filing of the suit towards
the purchase of goods and therefore the defendant is avoid to pay the
balance amount to the plaintiff. In this background, it is held that
plaintiff is entitle to recover sum of Rs.2,94,668.77 from the defendant.
7. The plaintiff has claimed 18% per annum on the amount. As
per section 34 of the Code of Civil Procedure the rate of interest may
exceed 18% per annum, if the transaction is commercial and there is no
contract pertaining to the same between the parties. In the present case
the transaction is a commercial one and there is no express contract
existing between the parties as to the rate of interest which shall be
levied. Therefore, the transaction is being commercial transaction be
rate of interest at the rate of 10% per annum would be just and proper
to be awarded on the principal sum adjudged i.e. amount of
Rs.2,94,668.77. Hence, point no.1 is answered in the affirmative.
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As to point no.2:
8. In view of discussion and finding on point no.1 it is held that
plaintiff is entitled to recover Rs.2,94,668.77 from defendants with
interest at the rate of Rs.18% per annum from the date of filing of the
suit till its realization. Plaintiff is also entitled to recover cost of the suit
from defendants. Hence, in answered to point no.2 I proceed to pass
the following order :
: O R D E R :
1.The defendant shall pay Rs.2,94,668.77 (Rupees
Two Lac Ninety Four Thousand, Six Hundred sixty
Eight and Seventy Seven Paisa only) to the plaintiff
with interest at the rate of 10% per annum from the
date of filing of the suit till its realization.
2. Defendant do pay costs of the suit to the plaintiff.
3. Decree be drawn accordingly.
4. Court fee, if any, be refunded as per rule.
Date:13.01.2020 (Ms. S. G. Shaikh)
AdHoc Judge,
City & Civil Court,
Gr. Bombay
Typed on : 13.01.2020
Signed on : 13.012020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
18.01.2020 04.25 p.m. Mrs. P.R.Wagh
Name of the Judge H.H.J. Sabiha.G.Shaikh.
Adhoc Judge.
(Court Room No.59)
Date of pronouncement of Order 13.01.2020
Order signed by P.O. on 13.01.2020
Order uploaded on 18.01.2020
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