Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Lodged on : 04/07/2019
Registered on : 22/07/2019
Decided on: 28/02/2020
Duration : 00:Y 07:M 08:D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
COMMERCIAL SUIT NO. 62 OF 2019
(CNR NO.MHCC01-007585-2019)
Mr.Munjal Babulal Doshi )
52 years, Business, )
Proprietor of M/s. International )
Group of Steel, 24, Reti Bunder, )
Darukhana, Mumbai-400 010. )...Plaintiff
Versus
1. M/s.Virdi Engineers )
carrying on business at )
Sardar Pratapsingh Industrial )
Unit No.7 & 7A, LBS Marg )
Bhandup(West), )
Bombay-4000 078 )
2. Mr.Arjun Singh Virdi )
Adult, age about – years )
Occupation business,Partner of )
Partner, M/s.VIRDI ENGINEERS )
Sardar Pratapsingh Industrial Est., )
Unit No.7 & 7A, LBS Marg )
Bhandup(West), Bombay-4000 078 )
Residing at )
Dheeraj Dream CHSL, )
13th Floor, 1304, 4th A )
LBS Marg., Bhandup(West), )
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Mumbai 400 078 )
3. Mr.Rajendrasingh Virdi )
Adult, age about – years )
Occupation business,Partner of )
M/s.VIRDI ENGINEERS )
Sardar Pratapsingh Industrial Est., )
Unit No.7 & 7A, LBS Marg )
Bhandup(West), Bombay-4000 078 )...Defendants.
Appearance:-
Ld.Advocate Mr.Fernando for plaintiff.
None for defendants
CORAM: HIS HONOUR JUDGE
SHRI R.V.KOKARE
DATE :28/02/2020(C.R.No.31)
JUDGMENT
This is a suit filed by the plaintiff for recovery of an amount of
Rs.42,42,943/- (Rupees Forty Two Lakhs Forty Two Thousand Nine
Hundred and Forty Three only) from the defendants.
Brief facts of the plaintiffs case are as under:-
2. The plaintiff is the proprietor of M/s. International Group of
Steel. The defendant no.1 is the partnership firm and the defendant
nos. 2 and 3 are the partners of the partnership firm of the defendant
no.1. The defendant nos. 2 and 3 are responsible for day-to-day activity
of defendant no.1. Plaintiff has been regularly supplying Alloy Round
Bars to the defendant no.1 on oral or Telephonic orders from time to
time and has been raising invoices on each and every occasion of supply
which has been confirmed by the defendant no.1. The credit period for
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every supply was 90 days from the date of invoice which is incorporated
in the invoice itself.
3. The defendant no.1 has accepted all the invoices from the period
of 1/04/2013 to 30/11/2018 and has never raised any discrepancy in
the supply and therefore deemed to have confirmed the accuracy of the
invoices. The defendant no.1 firm has been making payment of the dues
against the invoices raised by the plaintiff from time to time, sometimes
exactly invoice amount and sometimes on ad-hoc lum sum part
payment which were adjusted against the outstanding dues of the
defendant no.1 as per the ledger account maintained by the plaintiff.
The outstanding dues had been accumulated to the tune of
Rs.21,65,732/- as on 31/03/2017. Inspite of request and follow-up by
the plaintiff to pay the outstanding dues, the defendant failed and
neglected to clear the huge outstanding dues which has put the plaintiff
in the huge financial crunch.
4. Plaintiff further states that the defendant after making on account
payment of Rs.30,000/- on 28/06/2017 against the huge outstanding
balance of Rs.21,65,732/- as on 31/03/2017, stopped attending the
calls from the plaintiff, therefore, the plaintiff issued legal notice for
recovery of the dues through their advocate. After the issuance of legal
notice dated 20/01/2018, issued to the defendants, the defendants
approached the plaintiff and promised to clear the outstanding dues
very soon and requested for further supply of goods and made payment
of Rs.63,720/-, 69,422/-, Rs. 20,000/- and Rs. 50,000/- on 5/04/2018,
13/04/2018, 14/05/2018 and 22/06/2018 respectively and made a
purchase for Rs.60,558/- and Rs.69,264/- against out invoice no. 264
and 269 dated 10/04/2018 and 19/04/2018 respectively. The
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defendant thereafter again stopped payment and did not attend the
calls of the plaintiffs and avoided meeting with the plaintiff and also
ignored and neglected to make the payment.
5. Plaintiff therefore again issued legal notice dtd. 31/08/2018 for
the recovery of the outstanding dues, in response to which the
defendants again made a payment of Rs. 50,000/- on 10/10/2018 and
further not responding to their calls. The outstanding dues of only the
bill amount without interest as per ledger maintained by the plaintiff as
on 30/11/2018 is Rs. 20,42,412/-. The defendants have confirmed the
outstanding dues as on 31/05/2015 through their e-mail dtd.
1/06/2016, confirming the outstanding dues as on 31/05/2015.
6. Plaintiff states that interest accrued on delay in payment works
out to Rs.22,00,531/- as on 30/11/2018 and the total outstanding
including interest for overdue payment calculated @ 18% p.a. works
out to Rs.42,42,943/-. Hence, this suit for recovery of amount of
Rs.42,42,943/- as per particulars of claim at Exhibit-G and further
interest @ of 18% p.a. on Rs.20,42,412/- from the date of filing of the
suit till passing of decree and at the same rate or at such other rate as
this Hon'ble Court deems fit and proper date of decree till payment or
realization.
7. Suit summons is duly served on the defendants. Despite of service
of summons, the defendants failed to appear before the Court.
Therefore, on 24/10/2019, exparte order passed against the
defendants.
8. Heard Ld.advocate Mr.Fernando for plaintiff. In view of the
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pleadings of the plaintiff, following points arose for my determination.
I have recorded my findings against each of the points alongwith my
reasons are as follows.
Sr.
No.
Points Findings
1 Whether the plaintiff entitled to recover
amount of Rs.42,42,943/-alongwith
further interest @ 18%-p.a. on amount of
Rs. 20,42,412/- from the date of filing of
the suit til l realization of entire amount.
Yes. plaintiff is
entitled to recover
Rs. 42,42,943/-
alongwith further
interest @ 9%-p.a.
on amount of Rs.
20,42,412/- from
the date of filing of
the suit till
realization of entire
amount.
2 Whether the defendants are jointly and
severally liable to pay decreetal amount
to the plaintiff bank ?
Yes
3 What order and decree ? As per final order
REASONS
9. In order to prove the case of the plaintiff, the plaintiff has
examined Mr.Mungan B.Doshi, Proprietor of plaintiff's firm as P.W.1 by
way of evidence affidavit at Exhibit-8. The plaintiff has produced
documentary evidence under list of documents at Exhibit-9. The oral as
well as documentary evidence of the plaintiff has gone unchallenged.
As to point nos.1 and 2-
10. On scrutiny of the testimony of the P.W.1-Mr.Mungan B.Doshi, at
Exhibit-8 , it appears that the evidence affidavit of the P.W.1 is nothing
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but it is reproduction of the contents of the plaint. In the evidence of
P.W.1, he has stated that the plaintiff is the proprietor of M/s.
International Group of Steel. The defendant no.1 is the partnership firm
and the defendant nos. 2 and 3 are the partners of the partnership firm
of the defendant no.1. The defendant nos. 2 and 3 are responsible for
day-to-day activity of defendant no.1. Plaintiff has been regularly
supplying Alloy Round Bars to the defendant no.1 on oral or Telephonic
orders from time to time and has been raising invoices on each and
every occasion of supply which has been confirmed by the defendant
no.1. The credit period for every supply was 90 days from the date of
invoice which is incorporated in the invoice itself. The defendant no.1
has accepted all the invoices from the period of 1/04/2013 to
30/11/2018 and has never raised any discrepancy in the supply and
therefore deemed to have confirmed the accuracy of the invoices. The
defendant no.1 firm has been making payment of the dues against the
invoices raised by the plaintiff from time to time, sometimes exactly
invoice amount and sometimes on ad-hoc lum sum part payment which
were adjusted against the outstanding dues of the defendant no.1 as per
the ledger account maintained by the plaintiff. The outstanding dues
had been accumulated to the tune of Rs.21,65,732/- as on 31/03/2017.
Inspite of request and follow-up by the plaintiff to pay the outstanding
dues, the defendant failed and neglected to clear the huge outstanding
dues which has put the plaintiff in the huge financial crunch.
11. The P.W.1 further deposed that the defendant after making on
account payment of Rs.30,000/- on 28/06/2017 against the huge
outstanding balance of Rs.21,65,732/- as on 31/03/2017, stopped
attending the calls from the plaintiff, therefore, the plaintiff issued legal
notice for recovery of the dues through their advocate. After the
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issuance of legal notice dated 20/01/2018, issued to the defendants,
the defendants approached the plaintiff and promised to clear the
outstanding dues very soon and requested for further supply of goods
and made payment of Rs.63,720/-, 69,422/-, Rs. 20,000/- and Rs.
50,000/- on 5/04/2018, 13/04/2018, 14/05/2018 and 22/06/2018
respectively and made a purchase for Rs.60,558/- and Rs.69,264/-
against out invoice no. 264 and 269 dated 10/04/2018 and
19/04/2018 respectively. The defendant thereafter again stopped
payment and did not attend the calls of the plaintiffs and avoided
meeting with the plaintiff and also ignored and neglected to make the
payment.
12. The P.W.1 has further deposed that Plaintiff therefore again issued
legal notice dtd. 31/08/2018 for the recovery of the outstanding dues,
in response to which the defendants again made a payment of Rs.
50,000/- on 10/10/2018 and further not responding to their calls. The
outstanding dues of only the bill amount without interest as per ledger
maintained by the plaintiff as on 30/11/2018 is Rs. 20,42,412/-. The
defendants have confirmed the outstanding dues as on 31/05/2015
through their e-mail dtd. 1/06/2016, confirming the outstanding dues
as on 31/05/2015. He has further deposed that interest accrued on
delay in payment works out to Rs.22,00,531/- as on 30/11/2018 and
the total outstanding including interest for overdue payment calculated
@ 18% p.a. works out to Rs.42,42,943/-.
13. Inspite of oral evidence of the plaintiff , the plaintiff has produced
documentary evidence under list of documents at Exhibit 10. They are
as Copies of Invoices, invoices bearing No. 4354, 4397, 4439, 4440,
4446, 4447, 4454, 4456, 4459, 4460, 4462, 4464, 4583, 4585, 4589,
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4591, 4604, 4613, 264 & 269 at Exhibit-10, Copy of Ledger from
01/04/2013 to 31/11/2018 at Exhibit-11, Copy of legal notice dated
20/1/2018 at Exhibit-12, Copy of legal notice dated 31/08/2018 at
Exhibit-13, Copy of email dated 01/06/2016 confirming the
outstanding dues as on 31/05/2015 at Exhibit-14, Statement of accrued
interest at Exhibit-15.
14. It is pertinent to note that oral as well as documentary evidence
of the plaintiff has gone unchallenged. The plaintiff asked interest @
18% p.a. on amount of Rs. 20,42,412/- from the date of filing of the
suit till realization of entire amount. But at present the rate of interest
of any bank is not more than 9% to 11% pa. Therefore, I am of the
opinion that the rate of interest 9% p.a. on amount of Rs. 20,42,412/-
from the date of filing of the suit till realization of entire amount is
justiciable. Therefore, I am of the opinion that the plaintiff has proved
its case. Hence, I have answered on the point nos. 1 and 2 are in
affirmative. Hence, I proceed to pass following order.
ORDER
1. The suit of the plaintiff is hereby decreed with costs.
2. The defendants shall jointly and severally pay total amount of
Rs. 42,42,943/- ( Rupees Forty Two Lakhs Forty Two Thousand
Nine Hundred Forty Three only) alongwith further interest @ 9%
p.a. on amount of Rs. 20,42,412/- from the date of filing of the
suit till realization of entire amount.
3. Decree be drawn up accordingly.
(R.V.Kokare)
Judge,
Date :28/02/2020 City Civil Court, Gr. Bombay.
Directly dictated on
Computer : 28/02/2020
Signed by HHJ:02/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
02/03/2020 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.31)
Date of Pronouncement of
Judgment/Order
28/02/2020
Judgment/order signed by P.O on 02/03/2020
Judgment/order uploaded on 02/03/2020
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