Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.350/2021 : 1 : Judgement
MHCC010077492018
Presented on : 28062018
Registered on : 16072019
Decided on : 19032024
Duration : YY: MM : DD
05 : 08 : 20
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 350 Of 2021
(OLD SUMMARY SUIT NO.719 OF 2019)
Exhibit23
M/s. Gala Enterprises
A Partnership Firm, having office at: 26,
Old Hanuman Lane, 1st Cross Lane,
Kalbadevi Road, Mumbai – 400002.
Through its Partner Mr. Vipul Popatlal
Gala, Age: 45 years. ... Plaintiff.
V/s.
1) M/s. Orbit Global Traders
A Partnership having its office at: 1st Floor,
John Robert compound, Sewree Fort Road,
Sweree (East), Mumbai – 400015.
2) Mr. Rajiv Rajendra Modi
3) Ms. Malti J. Verma
(Full name not known of both partners of
M/s. Orbit Global Traders), having office
address at: 1st Floor, John Robert
compound, Sewree Fort Road, Sweree
(East), Mumbai – 400015. ... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 19th DAY OF MARCH 2024
: Appearances:
Ld. Advocate D. J. Jani for Plaintiff.
Defendant Exparte.
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Com. Suit No.350/2021 : 2 : Judgement
JUDGMENT
1. The plaintiff has filed the present suit for recovery of sum of
Rs.12,69,795/ together with interest @ 12 % per annum from the date
of filing of the suit till its full realization.
Initially the plaintiff has filed Summary Suit No.714 of 2019 for
recovery of above said amount against defendants. However, later on as
per office order dated 01.04.2021 it is converted in the Commercial
Suit.
2. Briefly stated facts of the case are as under:
The plaintiff is a Partnership Firm and carried on its business in
the name and style of “M/s. Gala Enterprises”. The plaintiff is doing
business of Sarees.
3. The defendant is a registered Partnership Firm of which
defendant Nos.2 and 3 are partners and are in daytoday management
and affairs of defendant no.1 Firm. Defendants are also in business for
supplying Sarees. The defendant Nos. 2 and 3 on behalf of the
defendant no.1 placed various orders with the plaintiff for supplying
Sarees from time to time between period 20152016. Defendants never
raised any objection regarding quality and quantity of the goods
supplied.
4. The plaintiff raised various invoices from time to time, as per the
various purchased orders placed by the defendants totally valued at Rs.
12,69,795/. Defendants in discharged of their liability have issued two
cheques bearing no.470 dated 10.02.2016 of Rs. 12,34,985/ and
Cheque bearing No.471 dated 10.02.2016 of Rs.34,810/ total
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Com. Suit No.350/2021 : 3 : Judgement
amounting to Rs.12,69,795/, drawn on Bank of India, Maheswari
Udyan Branch, Mumbai. Upon depositing said cheques with its bank on
28.04.2016, said cheques got dishonoured for the reason, “Insufficient
Funds”. Thereafter, the plaintiff issued Legal Notice dated 20.05.2016
demanding cheque amount. Despite receiving notice defendants neither
replied nor complied. Hence, the suit.
5. Inspite of service, defendants failed to appear. Hence, suit
proceeded Exparte against defendants vide order dated 21.11.2019.
6. In support of its claim, the plaintiff has filed claim affidavit of
PW1 Vipul Popatlal Gala (Exh.6). The plaintiff relied upon the
documents filed along with List (Exh.7). The plaintiff filed Evidence
Closing Pursis at Exh.22.
7. Heard, the Ld. Advocate for the plaintiff. Perused the record.
8. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of Rs.12,69,795/ together
with interest @ 12 % per annum
from the date of filing of the suit till
its full realization as claimed?
Partly Yes.
2. What Order and Decree? As per final order.
REASONS
As to point no.1:
9. PW1 Vipul Gala being Partner of the plaintiff's Firm, deposed as
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Com. Suit No.350/2021 : 4 : Judgement
per the contents of the plaint averments; hence I do not want to
reproduce the same to avoid the repetition. The plaintiff has filed Copy
of Authority Letter (Exh.10) and Registrar of Firms Receipts with letter
(Exh.11).
10. It is the case of the plaintiff that, it has sold goods from time to
time to the defendants. As per the purchase order the plaintiff has
raised invoices from time to time to the tune of Rs. 12,69,795/. In
discharge of their liability’s defendants have issued two cheques
amounting to total of Rs. 12,69,795/ dated 10.02.2016 respectively.
Upon presentation of said cheques on 28.04.2016, they stood
dishonoured for the reason ‘insufficient funds’ in the account of
defendants. Therefore, the plaintiff had issued notice on 20.05.2016,
but of no use. To Substantiate this the plaintiff filed documents such as;
Certified copies of 9 invoices (Exh.12 Colly); Certified copies of 9 slips
(Exh.13 Colly); Certified copy of accounts with certificate (Exh.14
Colly); Certified copy of dishonoured cheques (Exh.15 Colly); Certified
copy of Bank Memos (Exh.16 Colly); Certified copy of demand notice
(Exh.17); Certified copy of Registration Slips (Exh.18 Colly); Certified
copy of Acknowledgements (Exh.19 Colly); Certified copy of complaint
(Exh.20) and Certified copy of Judgment dated 28.11.2016 (Exh.22).
11. Herein it is to be seen that in spite of receiving writ of summons
defendants failed to appear. Therefore, in view of Order 37 Rule 2 (3)
of the Code of Civil Procedure, “if defendants failed to enter an
appearance, then an allegation in the plaint shall be deemed to admitted
and the plaintiff shall be entitled to a decree for any sum not exceeding the
sum mentioned in the summons, together with interest at the rate
specified”.
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Com. Suit No.350/2021 : 5 : Judgement
12. Herein it is to be seen that, in spite of receiving notice dated
20.05.2016, defendants failed to repay the amount. The suit is lodged
on 28.06.2018. Thus, it is well within limitation. Therefore, on the basis
of oral and documentary evidence the plaintiff duly proved that the
defendants are liable to pay principal amount of Rs.12,69,795/. So far
as rate of interest is concerned, I am of the view that looking to the
nature of business transaction and current bank rate of interest, if the
defendants are directed to pay the interest @ 9% p.a., then it will sub
serve the purpose. Thus, in view of my above discussion, I answer to
point No.1 in partly affirmative.
As to Point No.2.
13. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.350 of 2021 is partly decreed with Costs.
2. Defendants do jointly and severally, pay the amount of
Rs.12,69,795/ with further interest @ 9% per annum from the date of
due of each invoice till its full realization.
3. Decree be drawn up accordingly.
4. Commercial Suit No.350 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.19.03.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 19.03.2024
Directly typed on : 19.03.2024
Signed on : 19.03.2024
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Com. Suit No.350/2021 : 6 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 20.03.2024 NAME OF STENOGRAPHER
TIME: 01.50 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
19.03.2024
JUDGMENT/ORDER signed by
P.O. on
19.03.2024
JUDGEMENT/ORDER uploaded on 20.03.2024
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