Final Order 1

Order Details: Ex-parte Judgement
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MHCC010077662019
Presented on : 22-07-2019
Registered on : 09-09-2019
Decided on : 07-09-2022
Duration :03Y : 0M:16D
EXHIBIT- 15
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 901 OF 2019
Chetana Publication (I) LLP
( Formerly know as Chetana Book Depot)
A Partnership Firm, Through their
Constituted Attorney Mr. Rajesh Kamble
4th Floor, Trade link, E-Wing, “B”Block,
Kamala City, Above Bombay Canteen,
Lower Parel, Mumbai-400013.
...Plaintiff
Versus
1. Amar Public School
Sant Kabir Nagar, Dhanghataa,
Khalilabad, U.P.272 162.
2. Mr. Amar Nath Yadav
Age:Not known Occ:Business, Amar
Public School, Sant Kabir Nagar,
Dhanghataa, Khalilabad, U.P.272 162.
3. Mr. Rajesh Yadav
Age:Not known Occ:Business, Amar
Public School, Sant Kabir Nagar,
Dhanghataa, Khalilabad, U.P.272 162.
...Defendant
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Appearance :
Ld. advocate Mr. Vinayak. R. Salokhe for plaintiff.
None for defendant (exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 07/09/2022
Judgment
This is the summary suit filed under Rule 2 of Order XXXVII
of Code of Civil Procedure, 1908 (“CPC” for short) for recovery of
principal amount of Rs.1 lakh with interest at the rate of 18% p.a.
Plaintiff’s case-
2. Plaintiff is involved in the publishing and selling of
educational books. The defendant No.1 is a School and defendant Nos.
2 and 3 are its owners and responsible persons for the day to day affairs
and administration of the School.
3. Plaintiff claims that since 2017, the defendants used to
purchase books from the plaintiff. The plaintiff has supplied the books
as per the purchase order from time to time. The amount of
Rs.5,33,416/- was due against the supply of the books. Defendants paid
sum of Rs.3,38,580/- as a part payment from time to time. Plaintiff
further contends that, defendant towards the part payment, had issued
cheque of Rs.1 lakh dated 25.04.2018 in favour of the plaintiff. The
said cheque when presented, got dishonoured. Plaintiff immediately
issued demand notice to the defendants, however, same is not replied.
Plaintiff contends that amount against the cheque is still due and
defendants deliberately avoiding to pay the same. Hence, the present
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suit.
4. Though the defendants were duly served, they failed to
appear and therefore, this Court by Order dated 17.02.2022 directed to
proceed exparte.
5. Plaintiff has also filed affidavit-in-chief at Exh.5 whereby he
reiterated its claim. Plaintiff in support of his contention has filed
various documents on record at list Exh.6. Plaintiff has filed following
documents on record.
Sr.
No.
Exhibit
No. Particulars
1 Exh.7 True copy of the Power of Attorney
2 Exh.8 Original Invoice No.24590.02 dated 19.03.2017
3 Exh.9 Original Invoice No.24584.01 dated 19.03.2017
4 Exh.10 Original Invoice No.13512.01 dated 28.06.2018
5 Exh.11 Original Invoice No.24590.03 dated 31.03.2017
6 Exh.12 Certified copy of the return cheque along with memo.
7 Exh.13 Office copy of notice dated 18.04.2019 sent by RPAD
from plaintiff's advocate to the defendants.
8 Exh.14 Copy of the statement of accounts for the period from
01.04.2018 to 31.03.2021.
6. So as to decide the present suit following points arise for my
consideration. I have recorded my findings thereon, for the reasons
provided as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to
recover an amount of Rs.1 lakh
from defendants?
Partly in affirmative. Plaintiff
is entitled to recover an
amount of Rs. 1 lakh from
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If yes, at what rate interest? the defendants along with
interest @ 9% p.a. from the
date of filing of the suit
i.e.from 22.07.2019 till
realization of entire amount.
2. What order and decree? Suit is partly decreed as
per final order.
REASONS
7. Sub Rule 3 of Rule 2 of Order XXXVII of CPC provides that in
default of entering the appearance by the defendant, the allegations in
the plaint shall be deemed to be admitted and the plaintiff shall be
entitled to a decree for a sum not exceeding the sum mentioned in the
summons, together with interest and cost. Still it is necessary to
examine, whether plaintiff has adduced sufficient material on record, to
show its entitlement to claim decree.
AS TO POINT NO. 1 & 2-
8. The plaintiff has filed claim affidavit at Exh. 05 and has
reiterated its claim in the plaint. Plaintiff has also filed original invoice
(Exh. 8 to 11). Plaintiff claims that it has also filed the complaint under
Section 138 of Negotiable Instruments Act, 1881 ( "NI Act" for short)
and original cheques as well as cheque returned memo is placed before
the Court of Ld. M.M. Girgaon Court. Ld. advocate for the plaintiff
further submits that the said complaint is still pending and therefore the
certified copies of the said cheque and the cheque returned memo are
placed on record at Exh.12. The plaintiff has also placed on record
notice dated 18.04.2019 sent to the defendants claiming amount of Rs.
1,24,988/-.
9. Section 118 and 139 of NI Act favours the claim of the
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plaintiff. The issuance of the cheque itself shows that same was issued
by the defendant Nos. 2 and 3 for payment of debt or other legal
liability. Plaintiff, on oath, has contended that the amount due under
the cheque is not paid by the defendants. As such I find no reason to
dispute or deny the claim made by the plaintiff with respect to the
cheque amount. Hence, I hold that plaintiff is entitled to recover the
principal amount of Rs.1 lakh from the defendants.
10. So far as claim of interest is concerned, plaintiff has claimed
18% p.a. on the amount due. Plaintiff claims that invoices do bear a
clause of payment of 18% interest on delayed payment. However, there
is no subject agreement as such in that respect. The invoices being
unilateral document, cannot be considered as a document of agreed
rate of interest. Considering the nature of the transaction, I find it fit to
award the interest at the rate of 9% p.a. on the principal amount from
the date of filing of the suit till realization of entire amount.
11. As the claim in matter in hand arises with respect to the same
transaction for which the defendants have issued the cheques, naturally
the amount recovered by way of a decree passed in this suit needs to be
considered in the pending criminal prosecution u/s.138 of NI Act. This
Court hope and trust that plaintiff would submit the copy of present
Judgment before the Court of Ld. M.M. before whom the proceedings
u/s. 138 of NI Act is going on. Hence, the order.
ORDER
A) Summary Suit No.901 of 2019 is hereby partly decreed with
costs.
B) Defendants jointly and severally do pay an amount of
Rs.1 lakh to the plaintiff along with interest at the rate of 9%
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p.a. from the date of filing of the suit i.e. 22.07.2019 till
realization of entire amount.
C) Decree be drawn up accordingly.
D) Plaintiff is entitled for refund of Court fees, as per rules.
Date- 07/09/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 07/09/2022
Transcribed on : 12/09/2022
Signed on : 13/09/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14.09.2022 . Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07.09.2022
JUDGMENT/ORDER signed by P. O. on 13.09.2022
JUDGMENT/ORDER uploaded on 14.09.2022
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