Final Order 1

Order Details: Copy of Judgment
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MHCC010079992019
Presented on : 31.07.2019.
Registered on : 31.08.2019.
Decided on : 11.02.2022.
Duration : Y2,M6,D12.
Exhibit38.
IN THE CITY CIVIL COURT FOR GR.BOMBAY AT MUMBAI
COMMERCIAL SUIT NO.101 OF 2019
JAYSYNTH IMPEX LIMITED ]
A Company incorporated under, ]
The provisions of Indian Companies Act, ]
and Having its registered office at, ]
E16, Everest Building, Tardeo Road, ]
Tardeo, Mumbai400 034 ]
Through Mr. Rajendra Harmalkar ]
the Senior Executive of the Company ]
duly authorized by resolution passed on ]
28th January, 2019 by the Board of Directors ]......Plaintiff
V/s
M/s. Gurudev Textiles Processors Pvt. Ltd. ]
A Company incorporated under ]
The provisions of Indian Companies Act, ]
and Having its address at, ]
25/27, Matka Galli, Poddar Building, ]
Ground Floor, Room No.3, 4 & 5 ]
Ovalwadi, Vithalwadi, Kalbadevi, ]
Mumbai 400 002 ]
And also at ]
M/s Gurudev Textiles Processors Pvt. Ltd. ]
B43, Shirgaon, MIDC, ]
Thane, Badlapur (E), 421 503 ]
Maharashtra ]......Defendant.
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APPEARANCE:
Adv. Mr. C. D. Mishra for the plaintiff.
Mr. Nishit Jain Representative of defendant.
CORAM : RAJESH A. SASNE
JUDGE
(C.R.No.32)
DATED : 11th February, 2022.
JUDGMENT
This is suit under Section 2(1)(c) of the Commercial Courts
Act, 2015 for recovery of sum of Rs.25,00,175/ from the defendant
against the cost of goods.
In brief, facts of the plaintiff's case are as under :
2. The plaintiff and defendant are registered Companies.
Pursuant to the orders placed by the defendant with the plaintiff, the
plaintiff has sold, supplied and delivered goods to the defendant. The
defendant has duly received said goods and has never raised any
dispute with regard to the same. On 04.01.2019, amount of
Rs.23,03,291/ was due and payable by the defendant to the plaintiff.
As agreed, the payment was required to be made within 60 days of
receipt of the goods and in default the defendant is liable to pay interest
at the rate of 16% p.a. For part payment received from the defendant,
due credit is given for the same. In spite of the same, amount of
Rs.23,03,291/ is due and payable from the defendant to the plaintiff.
The defendant has failed to pay the due amount. Therefore, the plaintiff
has issued demand notice dated 09.01.2019, calling upon the defendant
to pay sum of Rs.23,03,291/ to the plaintiff. In spite of receipt of said
notice, the defendant has failed to pay the due amount. Therefore, the
defendant is liable to pay sum of Rs.25,00,175/ alongwith further
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interest at the rate of 16% p.a. on principal amount of Rs.23,03,291/.
With these contentions, the plaintiff has prayed for decree for recovery
of said amount from the defendant.
3. The defendant by written statement filed at Exhibit2 has
resisted this suit, contending that the suit is false, frivolous and
vexatious. It is further contention of the defendant that prior to
February2017, there was no outstanding dues from the defendant. On
26.02.2017, the factory of the defendant caught fire which is resulted in
huge loss to the defendant. It is further contention of the defendant that
thereafter the plaintiff assured to supply the goods to the defendant
without any condition as to credit period and also assured that the
plaintiff will wait for the payments till the defendant gains financial
stability. On the basis of this assurance, the defendant started business
transactions with the plaintiff. It is further contention of the defendant
that it was agreed that the defendant would clear the dues of its sister
concern companies one by one. Accordingly, total dues of sister concern
companies are fully paid. The defendant has made payment to the
plaintiff on account towards the total dues from time to time and the
plaintiff never asked any interest on the outstanding amounts due and
payable by the defendant till December2018. In the month of January
2019, the defendant received plaintiff's notice, claiming amount of
Rs.23,03,291/ alongwith interest at the rate of 16% p.a. The defendant
has replied this notice. After the receipt of reply, the plaintiff assured
for amicable settlement. The plaintiff had assured that they would not
raise any dispute against the due amount payable by the defendant. It is
further contention of the defendant that on 24.09.2019, the defendant
has paid Rs.61,696/ on account to the plaintiff. The defendant has
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denied that an amount of Rs.23,03,291/ is due and payable to the
plaintiff. The defendant has disputed the rate of interest and condition
about credit period of 60 days. With these contentions, the defendant
has denied its liability and prayed to dismiss the suit.
4. Heard the learned Advocate for the plaintiff and
defendant's representative in person. Issues framed at Exhibit6 by my
predecessor are reproduced herein below for my consideration, to
which I record my findings thereon with reasons as follows:
ISSUES FINDINGS
1. Whether the plaintiff proves that it has
supplied and delivered the goods under
various bills to the defendant?
Yes
2. Whether the defendant has failed to repay
the amount of Rs.23,03,291/(Rupees
Twenty Three Lakhs Three Thousand Two
Hundred Ninety One Only)?
Yes
Rs.21,16,595/-
3. Whether the plaintiff is entitled for recovery
of amount of Rs.25,00,175/ (Rupees
Twenty Five Lakhs One Hundred Seventy
Five Only) and further interest at the rate of
16% p.a. or any other rate of interest as
deemed fit and proper by this Court on the
sum of Rs.23,03,291/ from the date of
filing of suit till its realization?
Yes, entitled to
recover
Rs.25,00,175/ with
further interest at the
rate of 12% p.a on
Rs.21,16,595/
4. What order and decree? Suit is decreed.
REASONS
AS TO ISSUES NOS.1 to 3:
5. All these issues are interlinked with each other; hence they
are taken together for consideration. The plaintiff in support of its claim
has examined Rajendra (PW1) at Exhibit4. He deposes as an
authorised person of the plaintiff, whose authority is not disputed by
the defendant. He deposes that in pursuance to the purchase orders and
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emails received from the defendant, the plaintiff has time to time sold,
supplied and delivered goods to the defendant. Accordingly, invoices
were raised. The defendant was liable to pay due amount within 60
days of receipt of the goods and in default thereof liable to pay interest
at the rate of 16% p.a. He further deposes that after receiving the part
payment and adjusting the same, the defendant was liable to pay due
amount of Rs. 21,16,595/. He further deposes that in spite of repeated
demand and service of legal notice dated 09.01.2019 Exhibit31, the
defendant has failed to make payment of due amount.
6. The purchase orders at Exhibit15 to 23 support the
plaintiff’s case that the defendant has time to time placed orders for
purchase of goods from the plaintiff. The defendant has not denied this
fact in the written statement. Invoices (Exhibit24 collectively) are
raised by the plaintiff for said transactions of sale of goods. Delivery
challans/receipts (Exhibit25) support the fact of delivery of goods to
the defendant. In the crossexamination of the plaintiff’s witness
Rajendra (PW1) purchase orders, invoices are not disputed or
challenged by the defendant. Therefore, this part of evidence proves
that the plaintiff in pursuance to the purchase orders of the defendant,
has sold, supplied and delivered goods to the defendant.
7. The extract of ledger account at Exhibit26 shows that after
giving credit to the part payments received from the defendant, Rs.
21,16,595/ is due and payable from the defendant. The defendant has
not disputed the entries of this ledger account. The defendant has not
crossexamined the plaintiff in respect of these entires. Entries therein
are supported by invoices. The defendant has not produced any
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document to show that payment other than shown in the ledger account
is made and not reflected in the accounts. Hence entries in the ledger
account (Exhibit26) are required to accepted as true and correct.
8. The plaintiff has relied on the defendant's reply notice
dated 19.01.2019, (Exhibit34) which is issued as a reply to the
plaintiff's legal notice dated 09.01.2019, (Exhibit31). In view of Order
XI Rule 4 of the amended Code of Civil Procedure, the defendant has
not filed any admission and denial to the plaintiff's documents.
Accordingly, by order dated 28.10.2021 noted in Roznama, suit
proceeded without admission and denial of the defendant. Hence, all
the documents filed by the plaintiff are not denied by the defendant. In
the crossexamination of the plaintiff also the defendant has not
disputed these documents. In the aforesaid reply notice dated
19.01.2019, (Exhibit34) the defendant has admitted the transactions
held with the plaintiff and stated that as their factory has caught fire on
26.02.2017, they suffered huge losses and were not in position to pay
the bills. It is further contented that the plaintiff agreed to wait for
payment and to extend the credit time. It is also contended therein that
the defendant has intention to pay amount of Rs.23,03,291/.
Therefore, the defendant has admitted the liability. As aforesaid
evidence of purchase orders, invoices, delivery challans show that the
defendant has purchased goods from the plaintiff. Goods have been
accepted by the defendant without any dispute as to quantity, quality
and rates. In the notice reply the defendant admits the liability of due
amount. Hence the defendant is liable to pay due amount against the
goods purchased.
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9. Contentions in the notice reply also show that the
defendant has purchased goods from the plaintiff on credit. The
defendant has not produced any document to show that the payment of
due amount is made. All the invoices produced are of the year 2017 to
2018. Time limit to pay the outstanding amount of invoices as stated in
the invoices was 60 days. Even though if it is accepted that the plaintiff
has assured the defendant that the plaintiff will wait for the payment,
since, 20172018 till 2022, there was more than reasonable period for
the defendants to make the payment. Hence sufficient credit period is
already availed by the defendant.
10. In the crossexamination of the plaintiff's witness the
defendant has much disputed about charging of interest on the due
amount. The plaintiff has satisfactorily explained that as the defendant
has not made payment within reasonable time, the interest has been
charged. Except the oral contentions of the defendant there is no
document on record to show that interest has been waived. Hence, as
per the terms in the invoices, the defendant is liable to pay the interest.
The statement of account Exhibit26 show that after adjusting the part
payment made by the defendant, amount of Rs.21,16,595/ is due and
payable from the defendant. In his deposition the plaintiff admits that
during the pendency of the suit, the defendant has paid amount of
Rs.1,86,696/. By giving due credit to the payment made, the plaintiff
has prayed for decree in sum of Rs.25,00,175/ alongwith interest at the
rate of 16% p.a. on Rs.21,16,595/. The defendant has failed to make
the payment of the due amount within credit period, therefore the
plaintiff is entitled to charge interest at the rate of 16% p.a. till the date
of filing of the suit. I am of the view that considering the fact as to effect
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of pandemic of COVID19 on the industrial sector and also considering
the fact of mishap of fire in the defendant's factory, the interest
pendente lite and post decree shall be at certain low rate. So far as to
such discretion to award interest is concerned the Hon’ble Supreme
Court in Central Bank Of India Vs. Ravindra and Others (2002) 1
SCC 367 observed in the judgment as under :
Award of interest pendente lite and postdecree is
discretionary with the court as it is essentially governed by
Section 34 C.P.C. dehors the contract between the parties.
11. Hence, such discretion can be used while granting interest
pendente lite and postdecree within limits laid down by Section 34 of
the Code of Civil Procedure. Wording of proviso to Section 34 of the
Code of Civil Procedure confers discretionary right upon the Court to
grant interest exceeding 6% and up to the extent of contractual rate of
interest. Hence, rate of interest can be fixed within said parameters with
the discretion of the Court. Therefore, considering the effect of
pandemic of COVID19 on the industrial sector and also considering the
fact of mishap of fire in the defendant's factory, I am of the view that
further rate of interest shall be 12% p.a. from the date of filing of the
suit. I also considered the situation in favour of plaintiff to fix such rate
of interest. The plaintiff might have also incurred expenses for
manufacturing the goods and also might have suffered loss of business
and profit. Hence, in my view fixing rate of interest pendente lite and
post decree below the rate of 12% p.a. will be not fair and reasonable
for the plaintiff. Therefore, fixing rate of interest pendente lite and post
of decree at the rate of 12% p.a. is fair and balancing.
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12. In view of above observations I hold that the plaintiff has
sold, supplied and delivered goods to the defendant. The defendant has
failed to pay the due amount of Rs.25,00,175/ to the plaintiff. The
plaintiff is entitled to recover said amount from defendant along with
interest at the rate of 12% p.a. on principal sum of Rs. Rs.21,16,595/. I
answer issue Nos. 1 to 3 accordingly.
AS TO ISSUE NO.4:
13. In view of my findings to issue Nos.1 to 3, the suit is liable
to be decreed with costs. In the result, in answer to issue No.4, I pass
the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant do pay to the plaintiff an amount of
Rs.25,00,175/ (Rupees Twenty Five Lakhs One
Hundred Seventy Five Only) alongwith interest at the
rate of 12% p.a. on Rs.21,16,595/ (Rupees Twenty
One Lakhs Sixteen Thousand Five Hundred Ninety
Five Only) from the date of filing of this suit till the
date of realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :11.02.2022 Mumbai.
Dictated on : 11.02.2022
Typed on : 16.02.2022
Signed by HHJ on : 16.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.02.2022 at 05.55 p.m.
UPLOAD DATE AND TIME
(Mr. S. V. AMBEKAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
11.02.2022
Judgment/order signed by P.O. on 17.02.2022
Judgment/order uploaded on 17.02.2022
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