Final Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 257/18 1 Order.
in Comm.Suit No. 692/21.
MHCC010104882018
Presented on : 21-08-2018
Registered on : 21-08-2018
Decided on : 17-12-2021
Duration : 3 years, 3 months, 27 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 257 OF 2018
IN
COMMERCIAL SUIT NO. 692 OF 2021
(ORIGINAL SUMMARY SUIT NO. 697 OF 2018)
Amit P. Rathod, )
An adult, Indian Inhabitant, )
trading in the name and style and as proprietor )
M/s. Rishabh Silver, )
Having address at )
11/15, Vithalwadi, Ground Floor, )
Sonubhai Building, Zaveri Bazar, )
Mumbai – 400 002 )...Plaintiff
Versus
Hasmukh Mehta, )
Trading in the name and style of )
M/s Darshan Silver Creation )
Having address at )
109, Daginawala Building, 1st Floor, )
Dhanji Street, Mumbai – 400 003 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 17th DECEMBER, 2021.
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Summons for Judgment No. 257/18 2 Order.
in Comm.Suit No. 692/21.
Shri Rahul Chaube, Advocate for the plaintiff.
Shri Bharat Gavande, Advocate for the defendant.
ORDER
1. The plaintiff filed summary suit for recovery of
Rs.10,00,000/ with interest at the rate of 24% p.a. on the principal
amount of Rs.5,87,368/ from the date of filing of the suit till
realization with costs.
2. The plaintiff moved this Summons for Judgment on
16/08/2018 in Summary Suit No. 697/2018. Subsequently, the suit is
reregistered as a Commercial Suit No. 692/2021. Therefore, both suit
numbers are clarified in the beginning on the first page of this order.
Perused summons for judgment, affidavit in reply and the suit
proceeding. Heard learned counsel Shri Rahul Chaube for the plaintiff
and learned counsel Shri Bharat Gavande for the defendant.
3. The plaintiff is a proprietary concern dealing in silver
jewellery goods represented by Amit Rathod, the proprietor. The
defendant is also a proprietary concern represented by Hasmukh Mehta
having engaged in the similar business of silver jewellery goods.
Pursuant to the orders placed by the defendant with the plaintiff, the
plaintiff sold, supplied and delivered to the defendant silver jewellery
goods as per Bill No.13 dated 22/08/2015 worth Rs.14,94,772/. The
defendant made part payment of Rs.9,07,404/ from time to time
leaving principal balance amount of Rs.5,87,368/. As the defendant
failed to pay outstanding amount, advocate of the plaintiff issued
demand notice dated 22/01/2018 to the defendant. The defendant
gave reply dated 28/01/2018 raising false contentions. In response,
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Summons for Judgment No. 257/18 3 Order.
in Comm.Suit No. 692/21.
advocate of the plaintiff sent rejoinder dated 08/02/2018. The
defendant sent surrejoinder dated 15/02/2018 to the plaintiff by
denying the plaintiff's case and repeating his stand. The defendant
made claim of Rs.9,07,404/ by sending notice dated 06/02/2018 to
the plaintiff. Advocate for the plaintiff gave reply to the same on
12/02/2018. The plaintiff filed suit for recovery of principal amount of
Rs.5,87,368/ with accrued interest of Rs.4,12,632/ at the rate of 24%
p.a. (total Rs.10,00,000/). The plaintiff claimed further interest on
principal amount of Rs.5,87,368/ at the rate of 24% p.a. from the date
of the suit till its realization with costs.
4. Learned counsel Shri Rahul Chaube for the plaintiff
submitted that the silver ornaments were sold and supplied as per
purchase orders to the defendant. Accordingly, the bill was raised for
price of the goods of Rs.14,94,772/. The defendant paid
Rs.9,07,404/. According to him, the bill and the ledger account bear
signatures of the defendant. In affidavit in reply, signatures of the
defendant are not denied. The defendant made similar signature on his
affidavit in reply. By advancing these arguments, he prayed that
summons for judgment may be made absolute and the suit may be
decreed.
5. On the contrary, learned counsel Shri Bharat Gavande for
the defendant submitted that summary suit is not maintainable. The
suit is filed for extorting illegal money by legal ways. According to him,
goods were not delivered and forged documents regarding delivery of
goods are filed on record for misguiding the Court. The plaintiff is
liable to pay to the defendant. He further submitted that the defendant
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Summons for Judgment No. 257/18 4 Order.
in Comm.Suit No. 692/21.
filed Criminal Case No. 83/SW/2018 against the plaintiff in the Court
of Metropolitan Magistrate, 28th Court, Esplanade, Mumbai for the
offence under Section 403, 406, 420, 504, 506(II) of the IPC on
02/05/2018. In the said matter, process is issued against the plaintiff
on 06/10/2018. By stating so, he further submitted that defence of the
defendant is disclosed in affidavit in reply. He further referred para
no.3 to 5 of his reply notice dated 28/01/2018 in which it is stated that
the defendant paid the amount of Rs.9,07,404/ to the plaintiff without
getting delivery of goods from the plaintiff.
6. On careful perusal of material on record and rival
submissions, it is clear that the defendant has not disputed his signature
either on Bill No.13 or on ledger account filed with the plaint. It is only
contention of the defendant that the plaintiff misguided to the Court
with the help of forged and fabricated documents. Reply notice dated
28/01/2018 of the defendant reveals that part payment of
Rs.7,50,000/ was made. The defendant has further stated in reply
notice dated 28/01/2018 that the plaintiff induced the defendant to
part with additional payment of Rs.1,57,404/. It shows that details
given in para 5 regarding part payment of Rs.9,07,404/ are made out
from reply notice dated 28/01/2018. So far as question of payment
without receiving the goods is concerned, it does not appear to be
probable that the defendant would have parted with huge amount in
three installments without receiving the goods within period of two
years. In short, the plaintiff has substantiated his claim with the help of
Bill No.13 dated 22/08/2015 and ledger account. The defendant does
not have probable defence. The defendant has not disputed his
signature on Bill No.13 and ledger account. For all these reasons, there
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Summons for Judgment No. 257/18 5 Order.
in Comm.Suit No. 692/21.
is lack of sufficient grounds for granting leave to defend. For want of
contractual rate of interest and considering exorbitant rate of interest
claimed by the plaintiff, reasonable reduction in rate of interest is
required while granting pendente lite and postdecree interest at the
rate of 12% p.a. can be awarded on the principal amount. Ultimately,
the suit is liable to be decreed. Hence, I pass the following order :
ORDER
1. Summons for Judgment No. 257/2018 is made absolute in
terms of prayer clause (a).
2. Commercial Suit No. 692/2021 is partly decreed.
3. The defendant is directed to pay the sum of Rs.10,00,000/
(Rupees Ten Lakhs Only) to the plaintiff together with
interest @ 12% p.a. on the principal amount of
Rs.5,87,368/ from the date of filing of the suit till the date
of realization within three months.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn up accordingly.
6. Proceeding of Summons for Judgment No. 257/2018 is
closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 17/12/2021. Mumbai.
1. Dictated on : 17/12/2021.
2. Transcribed on : 17/12/2021.
3. Checked on : 18/12/2021.
4. Signed on : 18/12/2021.
5. Delivered to Certified :
Copy Section on
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Summons for Judgment No. 257/18 6 Order.
in Comm.Suit No. 692/21.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/12/2021. 5.08 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 17/12/2021.
Judgment/Order signed by P.O. on 18/12/2021.
Judgment/Order uploaded on 18/12/2021.
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