Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 99/2019
Lodged on : 25.07.2019
Admitted on : 31.08.2019
Decided on : 08.06.2022
Duration : Y M D
2 10 14
COMMERCIAL/SUMMARY SUIT NO. 99 of 2019
CNR NO. MHCC010077862019
Exh.26
Hemani Industries Limited
A Company incorporated under the
Companies Act, 1956 having its
registered office at C301, 3 rd floor,
Neelkanth Business Park, Ramdev
Mandir Road, Vidhyavihar (West),
Mumbai – 400 086 Through its
Deputy General Manager (Marketing)
Mr. Satish Bhaskar Agwan ...Plaintiffs
Versus
Shailesh Navinchandra Vyas
Aged about 55 years, Occu : Business,
Proprietor of Messrs. Pragati Enterprises,
Residing at Shiv Krupa Apartment,
Flat No. G1, B20, Shreeji Valley Colony,
Vicholi Mardana, Indore 452016
Madhya Pradesh and at ChunaGodam,
Near Sitadevi School, Palda Naka,
PattharMundla Road, Indore,
Madhya Pradesh 452020 and
also at 236, Vikram Tower,
Sapna Sangita Road, Indore,
Madhya Pradesh 452001. ….Defendant
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2 Judgment in Commercial Suit No. 99/2019
Appearance:
Adv. Mr. Vijay M. Vaghela for the Plaintiffs.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 8th JUNE 2022
J U D G M E N T
(Delivered on : 08.06.2022)
This is a suit for recovery of amount of Rs. 18,00,000/.
2. Brief facts of the plaintiffs' case is as under:
The plaintiffs are the company incorporated under the
Companies Act having Corporate Office at Vidhyavihar (West), Mumbai
and carrying on business of manufacturing and other items pesticides
and marketing since many years. The defendant represented himself as
a Proprietor of M/s. Pragati Enterprises and carrying on their business.
The plaintiffs further avers that pursuant to the Purchase Order dated
05.08.2015 bearing no. PE/1516/116, with credit period of 90 days,
the parties concluded their contract at Mumbai and the defendant was
required to pay the amount of goods at Mumbai at office of the
plaintiffs. The plaintiffs sold and delivered the goods of defendant
choice and defendant received the goods and never disputed the
quantity, quality and rate of the goods and Invoice No. 376 dated
10.08.2015 for total Rs. 12,01,662/. The defendant failed to pay the
amount of the above invoice within 90 days of the date of the invoice.
The plaintiffs learned from the market wellwishers that the defendant
had cheated many persons in market.
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3 Judgment in Commercial Suit No. 99/2019
3. The plaintiffs further submitted that for the aforesaid
supply of goods, upon repeated demands, the defendant made part
payment of Rs. 25,000/ on 26.12.2017 by NEFT and Rs. 20,000/ on
16.02.2018 by NEFT to the plaintiffs and failed to pay the remaining
amount of Rs. 11,56,662/ with interest. The plaintiffs submitted that
upon constant demands and follow up, the plaintiffs were given two
cheques to discharge their principal liability of Rs. 11,56,662/ and
agreed to give interest but both the cheques were dishonoured for
insufficient funds by the bankers. The plaintiffs demanded the amount
of dishonoured cheques at all addresses of the defendant by demand
notice dated 02.01.2019 and sent to all known addresses of the
defendant but all covers came back as defendant managed the post
office. Several cases of dishonoured cheques are pending against the
defendant in various Courts. The defendant is absconding. There is now
due and payable by the defendant to the plaintiffs a sum of Rs.
18,00,000/ and out of it Rs. 11,56,662/ is the principal amount and
Rs. 6,43,338/ is the amount of interest. The plaintiffs submitted that
the transaction with the defendant is a commercial one and agreed
interest is at the rate of 18% per annum. Hence, the defendant is liable
to pay the amount of Rs. 18,00,000/ to the plaintiffs. Hence, the
plaintiffs filed the suit for the recovery of outstanding amount of Rs.
18,00,000/ with further interest at the rate of 18% per annum on the
principal amount of Rs. 11,56,662/ from the date of filling of the suit
till the date of realization with costs of the suit.
4. The defendant is duly served with Writ of Summons as per
the Affidavit of Service Exh.8, but the defendant failed to appear.
Hence, the suit was proceeded exparte against the defendant vide
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4 Judgment in Commercial Suit No. 99/2019
order dated 31.03.2022.
5. P.W.1 Mr. Mohan Sunderji Dama is the Director of the
plaintiff company deposed in evidence by filling affidavit at Exh.9 and
proved the documents at Exh.11 to 24. The plaintiffs filed evidence
closure pursis at Exh.25.
6. After considering the pleadings of the plaintiffs and
evidence on record, following points arise for my determination and I
have recorded my finding against each of them with the reasons to
follows:
POINTS FINDING
1) Does plaintiff company proves
that they are entitled to recover an
amount of Rs. 18,00,000/ from
the defendant ?
In the affirmative.
2) Does plaintiff company prove
that they are entitled for further
interest on principal amount of Rs.
11,56,662/ from the date of
realization?
Yes. but @ 12% per annum
3) What order? As per final order.
4) What order and decree? Suit decreed with costs.
R E A S O N S
7. Heard Learned Advocate Mr. Vijay M. Vaghela for the
Plaintiffs.
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As to point nos. 1 to 3
8. It is the case of the plaintiff company that they have sold
and delivered the goods of the defendants choice. The defendant failed
to pay the amount of the invoice. The defendant has issued two cheques
in favour of plaintiff company, which were dishonoured. According to
the plaintiffs, inspite of issuance of notice, the defendant failed to make
the payment. Therefore, an amount of Rs. 18,00,000/ is due from the
defendant. The Writ of Summons was issued to the defendant, but the
defendant failed to appear before the Court. The defendant has not
contested the claim by filling its Written Statement. It appears that the
averments made in the plaint by the plaintiffs is not denied or disputed
by the defendant by filling Written Statement. In other words, it can be
seen that the averments made in the plaint were deemed to be admitted
by the defendant.
9. In support of the pleadings, the plaintiffs examined his
Director Mr. Mohan Sunderji Dama at Exh.9. He has reiterated the
contents of the plaint in his Affidavit. P.W.1 deposed that the plaintiff
company have sold and delivered the goods to the defendant of his
choice and the defendant received the goods and never disputed the
quality, quantity of the goods. He further deposed that they have
prepared the invoice of Rs. 12,01,662/ for the goods sold and supplied
to the defendant. The defendant failed to pay the amount of the invoice
within 90 days. After repeated demands and follow up, the defendant
gave two cheques to discharge their principal liability but, both the
cheques were dishonoured for 'insufficient funds' by the bankers of the
defendant. He further deposed that the plaintiffs demanded the amount
of dishonoured cheques by issuance of notice to the defendant. He
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6 Judgment in Commercial Suit No. 99/2019
proved the legal notice dated 02.01.2019. The aforesaid oral evidence
of the plaintiffs was not denied or disputed by the defendant. The
defendant failed to conduct cross examination of the plaintiffs. The
defendant has not challenged the oral evidence adduced by the
plaintiffs. In my view, the oral evidence adduced by the plaintiffs is not
subjected to cross examination. Therefore, I have no reason to
disbelieve the version of the plaintiffs.
10. The oral evidence of the plaintiffs is supported by
documentary evidence at Exh.11 to 24. Exh.12 is the copy of Purchase
Order dated 05.08.2015 bearing No. PE/1516/116; Exh.13 is the
printout of delivery dispatch scheduled as agreed between the parties as
per email dated 11.08.2015; Exh.14 is the copy of invoice no. 376
dated 10.08.2015; Exh.15 and 16 are the email dated 15.04.2017 and
26.05.2017 respectively; Exh.19 & 20 are the copies of bank memo
dated 13.12.2018 of both the dishonoured cheques; Exh.21 in the copy
of Demand Notice dated 02.01.2019; Exh.23 is the copy of ten postal
receipts dated 05.01.2019; Exh.24 is the Certificate under Section 65B
of the Indian Evidence Act, 1872. The plaintiff company placed on
record both the cheques at Exh.17 & Exh.18 which shows that both the
cheques were issued by the defendant in favour of the plaintiff
company. The amount shown in both the cheques is Rs. 11,56,662/. In
my view, as the cheques were issued by the defendant in favour of the
plaintiffs, it can be said that the amount was due from the defendant to
the plaintiffs and therefore the defendant has issued the cheques in
favour of the plaintiffs towards repayment of the amount of the goods.
The copy of legal notice at Exh.21 shows that the notice was issued to
the defendant by the plaintiffs and claimed due amount from the
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defendant. No reply was sent to the said notice by the defendant. The
plaintiffs have proved the legal notice at Exh.21. The evidence on
record shows that the goods were sold by the plaintiffs to the defendant
and it was received by the defendant. The evidence on record shows
that the defendant failed to pay the amount to the plaintiffs. In my
view, the oral as well as documentary evidence tendered by the
plaintiffs was remained unchallenged. Therefore, I have no reason to
disbelieve the evidence adduced by the plaintiffs. In short, the claim is
proved by the plaintiffs by production of documentary evidence.
11. So far as interest rate is concerned, the plaintiffs have
claimed interest at the rate of 18% per annum.. Said interest is
exorbitant and the Court can exercise discretion while granting further
interest. Interest at the rate of 12% per annum would be just and proper
considering commercial nature of transaction. Costs of the suit is liable
to be imposed on the defendant. In the light of above discussion, I
record my finding as to points nos. 1 in the affirmative and point no. 2
accordingly. Hence, I pass the following order:
ORDER
1) Commercial/Summary Suit No. 99 of 2019 is decreed
with costs.
2) The defendant is directed to pay an amount of Rs.
18,00,000/ (Rs. Eighteen Lakhs Only) to the plaintiff
company with further interest at the rate of 12% per
annum on principal amount of Rs. 11,56,662/ (Eleven
Lakhs Fifty Six Thousand Six Hundred and Sixty Two
Only) from the date of the suit till the date of
realization within three months from the date of decree.
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3) Court fees shall be refunded to the plaintiff/company as
per rules.
4) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 08.06.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 08.06.2022
Typed on : 08.06.2022
Checked & Sign on : 09.06.2022
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9 Judgment in Commercial Suit No. 99/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
09.06.2022 3.50 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
08.06.2022
Judgment/order signed by P.O on 09.06.2022
Judgment/order uploaded on 09.06.2022
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