Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit 1722019
MHCC010073042019 Presented on : 15/07/2019
Registered on : 7/11/2019
Decided on : 1/12/2022
Duration : 3Y/0M/24D.
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.172 of 2019
MetterToledo India Private Limited
Amar Hill, Saki Vihar Road, Powai, Mumbai
400 072. ...PLAINTIFF
VERSUS
Jericho Chemicals Private Limited
House No.19, Lamb Road, Ambari, Guwahati,
Assam781001. ...DEFENDANT
Shri Amiy Kumar i/b. King Stubb & Kasiva Advocates and
Attorneys, learned Advocate for the plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 1/12/2022)
This is a suit for recovery of sum of Rs.11,87,721/ and
further interest at such rate as this court deem fit on principal sum from
the date of suit till realisation of the amount.
2] It is case of plaintiff that plaintiff is a Company
incorporated under the provisions of Companies Act 1956. Plaintiff is
dealing in business of manufacturing, marketing, dealing and servicing
of various types of electronic weighing scales, weighing balances,
jewelery balance, lab and analytical instruments to customers around
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the world.
3] Defendant has placed two purchase order dtd.21/3/2013
for supply of load cell based hopper/pot weighing system and weigh
bridge. Pursuant to the aforesaid order and as per terms between
parties the defendant had need advance payment of Rs.3,31,970/ on
6/4/2013. Thereafter plaintiff has issued two proforma invoicescum
order confirmation dtd.12/4/2023 for value of Rs.3,50,698/ and
dtd.16/7/2013 for value of Rs.11,68,993/ against the order placed by
the defendant. Plaintiff has supplied the materials to the defendant as
per the aforesaid order confirmation at Assam on 14/10/2013.
Defendant had received all materials referred in invoices. Therefore, on
28/9/2013 plaintiff had issued invoice No.140002896 for Rs.3,50,000/
and invoice No.140002897 for Rs.11,68,993/.
4] Till date defendant had made part payment of
Rs.3,31,970/. Therefore, sum of Rs.11,87,721/ is still outstanding
required to be paid by defendant to plaintiff. Plaintiff repeatedly
requested him to clear the outstanding. However, he deliberately
ignored and neglected to clear the outstanding dues.
5] Defendant informed the plaintiff that due to some technical
fault at their end, a project of defendant got delayed, for which the said
materials were ordered. Therefore, the said materials are of no use.
Keeping a long term business relation in mind, plaintiff decided to take
back the materials supplied to the defendant through sales return
policy. Accordingly, plaintiff deputed service engineer for inspection of
the materials. After the said inspection the Memo of Memorandum
dtd.25/3/2015 signed by the parties. Defendant vide its email
dtd.22/7/2018 asked the plaintiff to give undertaking for refund of the
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advance. The plaintiff has not accepted the said demand because
plaintiff had paid excise and sales tax of Rs.1,93,690/ and the liability
of Rs.1,48,985/ towards the C form + interest + penalty under the
statutory provision. As the said materials were lying at the defendant’s
site for more than 2 years, the plaintiff incurred an additional loss and
now the value of material depreciated.
6] On 22/7/2015 plaintiff requested defendant to allow their
transporter to lift the materials but defendant sent email dtd.22/7/2018
for refund of advance. Defendant did not allow the transporter of
plaintiff to lift the said material. After repeated request made to
defendant he neither allowed to lift the said material nor paid the
outstanding amount of Rs.11,87,721/. Hence, he issued demand notice
to defendant on 17/5/2017 and called upon him to pay the outstanding
dues. But defendant failed and neglected to pay the same. As on the
date of filing of the suit the defendant is in outstanding of
Rs.15,19,619/ Less advance of Rs.3,31,970/ =Rs.11,87,721/.
7] Defendant served with suit summons but it remained
absent. Hence, suit proceeded exparte against him.
8] On above facts following points arise for determination of
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiff proved that it has
sold, supplied and delivered goods of
Rs.15,19,691/ as per two invoices dtd.
21/3/2013 to defendant ? …Yes
2. Whether the plaintiff proved that
defendant is in outstanding of …Yes
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Rs.11,87,721/ together with interest?
3. Whether plaintiff is entitled for interest on
principal sum from the date of suit till
realization of the entire amount ?
...Yes @ of 18%
p.a.
4. Whether plaintiff is entitled for the relief
claimed ?
... Yes
5. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 TO 4:
9] Heard learned counsel of plaintiff. Plaintiff has examined
its Senior AssociatesLegal Ms. Hinal Bharat Gohil. (PW1) to prove its
case. She reproduced all content of plaint in her chiefexamination. She
He has filed following documents.
Ex.08 – Original Copy of Board Resolution dt. 17/02/2022.
Ex.09 – True copies of office copies of the said purchase order dt.
21/03/2013.
Ex.10 – Office copy of the performa invoices cum order
confirmation bearing OC no. 002003861 dt. 12/04/2013
and OC No. 0020041141 dt. 16/07/2013.
Ex.11 – Office copies of the tax invoice bearing invoice no.
140002896 and 140002897 both dt. 28/09/2013.
Ex.12 Office true copy of MOM dt. 25/03/2015.
Ex.13 – True copies of email dt.22/07/2015.
Ex.14 – True copies of email dt.07/12/2015 and 08/12/2015.
Ex.15 – True copy of email dt. 09/12/2015.
Ex.16 – True copies of email dt.10/12/2015, 04/10/2016,
05/10/2016 and 05/01/2017.
Ex.17 – Office copy of the demand notice dt. 17/05/2017 issued to
the defendant by the plaintiff.
10] Evidence of PW1 remained unchallenged as suit
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proceeded exparte against defendant. Considering testimony of PW1
and documents, it becomes clear that plaintiff has sold, supplied and
delivered goods total of Rs.15,19,691/ as per above invoices.
Defendant has made advance payment of Rs.3,31,970/. Thus, balance
sum of Rs.11,87,721/remained to be paid by defendant.
11] As far as rate of interest on principal sum is concerned,
considering prevailing market rate of interest in commercial
transactions, the plaintiff is entitled to claim interest @ 18% p.a.
because defendant failed to pay the amount within time from the date
of invoices and thereby deprived the plaintiff from using the said
money. Thus, I answered point Nos. 1 to 4 as above. Hence, I pass the
following order.
ORDER
1. Suit is decreed with costs as under.
2. Defendant is directed to pay the plaintiff a sum of
Rs.11,87,721/ with interest @ of 18% p.a. from the date
of suit till realization of the amount.
3. Decree be drawn up accordingly.
Date : 1/12/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 1/12/2022.
Checked on : 1/12/2022.
Signed on : 1/12/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
1/12/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 1/12/2022.
Order signed by P.O. on 1/12/2022.
Order uploaded on 1/12/2022.
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