Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.370/2021 : 1 : Judgement
MHCC010079262018
Presented on : 02072018
Registered on : 18042019
Decided on : 16042024
Duration : YY: MM : DD
05 : 09 : 14
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 370 Of 2021
(OLD SUMMARY SUIT NO.491 OF 2019)
Exhibit62
M/s. Kavita Silk Mills
Through Mr. Shyam Punjabi c. A. of the
plaintiff Age: 52 years, Occupation:
Business, Having Office At: Gala No. D45
Raj Rajeshwari Compound, Sonale Village,
Bhiwandi, Dist Thane. ... Plaintiff.
V/s.
1) M/s. Orsan Silk Mills
Having Office address at: 2nd Floor No. 14,
Satyabhama Bldg. Dr. Vegas Street, Chira
Bazaar, Mumbai – 400002.
2) Mrs. Premadevi Rastogi (Proprietor)
Residing at: Vashoda Sadan No. 2
CoOp. HSG. Society Ltd., Flat No. 302
and 303 Saraswati Nagar, Navghar Road
Bhayander East, Dist Thane– 401105. ... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 16th DAY OF APRIL 2024
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Com. Suit No.370/2021 : 2 : Judgement
: Appearances:
Ld. Advocate S. L. Mhatre for Plaintiff.
Defendant's Exparte.
JUDGMENT
The plaintiff has filed the present suit for recovery of sum of
Rs.26,62,419/ along with further interest of Rs.12,81,343/ total claim
amounting to Rs.39,43,762/ at the rate of 18% per annum from the
date of filling of the suit till its full realization.
Herein it is to be noted that, initially the plaintiff has filed
Summary Suit No.491 of 2019 for recovery of above said amount
against defendants. However, later on as per office order dated
03.04.2021, it is converted into the Commercial Suit.
2. Briefly stated facts of the case are as under:
The plaintiff is carrying on business of supply of cloth material
and garment material.
3. The defendant No.2 carrying on business in the name and style
of 'M/s. Orsan Silk Mills', a Proprietary concern as its Sole Proprietor of
the defendant No.1. Defendants are also carrying on business of supply
of cloths and garments material.
4. It is submitted that, as per order placed by the defendants, the
plaintiff from timetotime sold and supplied cloths and garments
materials to the defendant’s total valued of Rs.30,96,295/. Defendants
have paid part sum of Rs.4,33,876/ leaving balance of sum of
Rs.26,62,419/. The above said cloths and garments materials delivered
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Com. Suit No.370/2021 : 3 : Judgement
by the plaintiff to the defendants without there being any objection
regarding quality and quantises of the said material raised by the
defendants.
5. The plaintiff on several occasions called upon the defendants to
pay the outstanding amount of Rs.26,62,419/ along with interest 18%
per annum but they under one pretext or other avoided payment in
spite of several promises. The plaintiff has raised total 22 invoices for
the period 13.08.2015 to 25.11.2015. However, the defendants failed to
make payment of outstanding amount, hence, the suit.
6. Inspite of service, defendants failed to appear. Hence, suit
proceeded Exparte against them vide order dated 02.02.2023.
7. In support of its claim, the plaintiff has examined PW1 Mr.
Shyam Lachhmandas Punjabi, Power of Attorney of the Plaintiff's at
Exh.13. The plaintiff got proved document through this witness filed
alongwith list Exh.14. The plaintiff has also filed Evidence Closing
Pursis at Exh.61.
8. Heard, the Ld. Advocate for the plaintiff. Perused the record.
9. Following points arise for my determination, to which I have
given my findings with reasons as follows:
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Com. Suit No.370/2021 : 4 : Judgement
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.26,62,419/
along with further interest of
Rs.12,81,343/ total claim
amounting to Rs.39,43,762/ at the
rate of 18% per annum from the
date of filling 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:
10. The plaintiff has examined PW1 Mr. Shyam Punjabi. He
deposed as per the contents of the plaint averments. Hence, I do not
want to reproduce the same to avoid the repetitions. The plaintiff has
filed copy of Power of Attorney dated 17.05.2018 at Exh.60, thereby,
the witness is authorised to depose on behalf of the Plaintiff's Firm.
11. It is argued on behalf of the plaintiff that, the plaintiff has sold
and delivered goods from timetotime to the defendants worth
Rs.30,96,295/ The plaintiff has raised 22 invoices for the period from
13.08.2015 to 25.11.2015 (Exh.15 to Exh.36 respectively). The plaintiff
has also filed copy of 23 Challans (Exh.37 to Exh.59 respectively). In
spite of repeated demands, the defendants failed to pay the entire
amount. Defendants have made part payment of Rs.4,33,876/ only
leaving behind balance of Rs.26,62,419/. As the defendants failed to
pay the said amount, hence, the plaintiff has constrained to file the
present suit. Hence, it may kindly be decreed.
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Com. Suit No.370/2021 : 5 : Judgement
12. 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 be
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.”
13. It is further to be noted that, the invoices were for the period
13.08.2015 to 25.11.2015. The suit is lodged on 02.07.2018. Hence, 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 amount of Rs.26,62,419/. 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 subserve the
purpose. Thus, in view of my above discussion, I answer to point No.1
in partly affirmative.
As to Point No.2.
14. In view of my above discussion, I pass the following order:
ORDER
1. Commercial Suit No.370 of 2021 is partly decreed with Costs.
2. Defendants do pay the amount of Rs.26,62,419/ with further
interest @ 9% per annum from the date of due of each invoice till its
full realization.
3. Decree be drawn up accordingly.
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Com. Suit No.370/2021 : 6 : Judgement
4. Commercial Suit No.370 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.16.04.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 16.04.2024
Directly typed on : 16.04.2024
Signed on : 16.04.2024
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Com. Suit No.370/2021 : 7 : Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 16.04.2024 NAME OF STENOGRAPHER
TIME: 04.45 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
16.04.2024
JUDGMENT/ORDER signed by
P.O. on
16.04.2024
JUDGEMENT/ORDER uploaded on 16.04.2024
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