Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Commercial Suit No.129/19 ..1.. Judgment
Lodged on : 31.07.2019
Decided on : 29.01.2020
Duration : 0 Y, 6 M, 0 D
CNR No.MHCC010080042019
Exh.10
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
COMMERCIAL SUIT NO.129 OF 2019
Shantilal Morarji Vira
Aged : 66 years,
Carrying on proprietary business of
food products n the name and style of
M/s. Rupande Food Products, having
address at 52, Shivaji Nagar, N.M.Joshi Marg,
Lower Parel (East), Mumbai – 400 013 .. Plaintiff
Versus
Vinod Motiram Dewani
An adult, carrying on proprietary
business in the name and style of
M/s. Vinod Agency at office No.123,
Gujarat Ginning Mill Compound,
Near Jaipur Golden Transport,
O/s. Prem Darwaja, Ahmedabad 380001
(Gujarat) And at 313/A, Sindhi Colony,
Behind Water Tank, Sardar Nagar,
Pin 382475 (Gujarat) .. Defendant
Mr. Yashpal Jain, advocate for plaintiff
None for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 29th January, 2020
JUDGMENT
Present suit is filed for recovery of sum of Rs.3,85,000/ and
further, interest @ 18 % per annum on Rs.2,69,000/ from the date of
filing of the suit till realisation of said amount.
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Commercial Suit No.129/19 ..2.. Judgment
In brief case of the plaintiff is as under:
2. Plaintiff carries on business of manufacturing of various food
products and pizzas at Shivaji Nagar, N.M. Joshi Marg, Lower Parel
(East), Mumbai. He is sole proprietor of firm M/s. Rupande Food
Products. Defendant is sole proprietor of his firm M/s. Vinod Agency
and carried on business in food products at Ahmedabad. In the year
2017, defendant approached plaintiff and represented that he is dealing
in business of food products at Ahmedabad City. He induced plaintiff to
have business dealing with his firm. Plaintiff thereupon agreed to
supply food products/item to the defendant as per his orders and
requirement. Pursuance to orders received from the defendant, he has
sold, delivered and supplied food products, items to the defendant and
simultaneously raised invoices against the said orders. Details of which
are as under:
1. Invoice No.33592 dated 28.01.2017 of Rs.1,00,980/
2. Invoice No.33682 dated 20.02.2017 Rs.1,68,300/
3. Total amount of Rs.2,69,280/ is payable by defendant under
above referred invoices. As per instructions of the defendant, aforesaid
food products/items were delivered through Patel Good Freight Carriers
(Bombay) for due delivery of the products to the defendant at
Ahmedabad. The defendant duly acknowledged the receipt of aforesaid
invoices and goods and at no point of time has raised any issues or
disputes towards aforesaid goods so delivered to him. Defendant had
agreed to pay price of the said good within 15 days from the receipt of
goods failing which he shall be liable to pay interest @ 18 % per
annum. Defendant despite several reminders and request made by the
plaintiff, failed and neglected to make the payment of outstanding
principal amount and interest. Plaintiff through his advocate’s demand
notice dated 02.05.2018 called upon defendant to pay Rs.1,68,300/
only in relation to invoice No.33682 with accrued interest @ 18% per
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Commercial Suit No.129/19 ..3.. Judgment
annum. But said notice was returned undelivered with remark left.
Plaintiff by his advocate’s reminder notice dated 09.07.2018 once again
called upon defendant to comply with demand made in first notice
dated 02.05.2018. Due to inadvertence no demand was raised in
aforesaid notices for Invoice No.333592 dated 28.01.2017 amounting to
Rs.1,00,980/. Defendant has received said notice but he neither made
payment nor replied to the said notices. Therefore, plaintiff constrained
to file present suit claiming Rs.2,69,280/ being principal outstanding
amount and Rs.1,15,965/ being interest on unpaid sum @ 18 % per
annum till the date of filing of the suit and also claimed future interest
on the principal outstanding @ 18% perannum from date of filing suit
till realization of said amount. Hence, this suit.
4. Suit proceeded ex.parte against the defendant vide order dated
18.01.2020.
5. In view of above facts following points arise for my
determination and I have recorded my findings to the same with
reasons to follow as under.
POINTS FINDINGS
1. Whether plaintiff is entitled to suit claim? Entitled for
claim of
Rs.3,48,381/.
2. What order and decree? As per final
order
REASONS
As to Point Nos.1 and 2
6. In order to prove his claim plaintiff has filed his affidavit of
evidence at Exh.3 and placed reliance upon office copy of invoice
No.33592 along with its consignment note No.385 (Exh.5 colly), office
copy of invoice No.33682 along with its consignment note No.436
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Commercial Suit No.129/19 ..4.. Judgment
(Exh.6 colly), office copy of demand notice dated 02.05.2018 along
with postal money receipts and acknowledgment and returned envelope
(Exh.7 colly) and office copy of demand notice dated 09.07.2018 along
with postal acknowledgment (Exh.8 colly). Plaintiff has closed his side
by filing pursis at Exh.9.
His evidence remained unchallenged for want of cross
examination as suit proceeded exparte against defendant. Heard
learned advocate for plaintiff.
7. PW1 Shantilal Vira, plaintiff has reiterated the facts mentioned
in the plaint in his affidavit of evidence. He deposed that he carries on
business of manufacturing of various food products and pizzas at Shivaji
Nagar, N.M. Joshi Marg, Lower Parel (East), Mumbai. He is sole
proprietor of Firm M/s. Rupande Food Products. Defendant is sole
proprietor of his Firm M/s. Vinod Agency and carried on business in
food products at Hindamata. In the year 2017, defendant approached
him and represented that he is dealing in business of food products at
Ahmedabad City. He induced him to have business dealing with his
firm. He thereupon agreed to supply food products/item to the
defendant as per his orders and requirement. Pursuance to orders
received from the defendant, he has sold, delivered and supplied food
products, items to the defendant and simultaneously raised invoices
against the said orders. Details of which are as under:
1. Invoice No.33592 dated 28.01.2017 of Rs.1,00,980/
2. Invoice No.33682 dated 20.02.2017 Rs.1,68,300/
8. Total amount of Rs.2,69,280/ is payable by defendant under
above referred invoices. As per instructions of the defendant, aforesaid
food products/items were delivered through Patel Good Freight Carriers
(Bombay) for due delivery of the products to the defendant at
Ahmedabad. The defendant duly acknowledged the receipt of aforesaid
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Commercial Suit No.129/19 ..5.. Judgment
invoices and goods and at no point of time has raised any issues or
disputes towards aforesaid goods so delivered to him. Defendant had
agreed to pay price of the said good within 15 days from the receipt of
goods failing which he shall be liable to pay interest @ 18 % per
annum. Defendant despite several reminders and request made by him,
failed and neglected to make the payment of outstanding principal
amount and interest. He through his advocate’s demand notice dated
02.05.2018 called upon defendant to pay Rs.1,68,300/ only in relation
to invoice No.33682 with accrued interest @ 18% per annum. But said
notice was returned undelivered with remark left. He by his advocate’s
reminder notice dated 09.07.2018 once again called upon defendant to
comply with demand made in first notice dated 02.05.2018. Due to
inadvertence no demand was raised in aforesaid notices for Invoice
No.333592 dated 28.01.2017 amounting to Rs.1,00,980/. Defendant
has received said notice but he neither made payment nor replied to the
said notices. Therefore, he is constrained to file present suit claiming
Rs.2,69,280/ being principal outstanding amount and Rs.1,15,965/
being interest on unpaid sum @ 18 % per annum till the date of filing
of the suit and also claimed future interest on the principal outstanding
@ 18% perannum from date of filing suit till realization of said
amount.
9. His evidence is well supported by documents filed on record.
Invoice No.33592 dated 28.1.2017 (Exh.5 colly) shows that Vinod
Agency had purchased food items valued at Rs.1,00,980/ inclusive of
CST from the firm of plaintiff and said item was delivered with Patel
Good Freight Carriers for carrying the same in order to deliver it to
Vinod Agency on 30.01.2017 vide consignment note Exh.5 colly.
10. Invoice No.33682 dated 20.2.2017 (Exh.6 colly) shows that
Vinod Agency had purchased food items valued at Rs.1,68,300/
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Commercial Suit No.129/19 ..6.. Judgment
inclusive of CST from the firm of plaintiff and said item was delivered
with Patel Good Freight Carriers for carrying the same in order to
deliver it to Vinod Agency on 22.02.2017 vide consignment note Exh.6
colly. As per section 39 of the Sale of Goods Act, where in pursuance of
a contract of Sale, the seller is authorised or required to send the goods
to the buyer, delivery of goods to a carrier, whether named by the buyer
or not, for the purpose of transmission to the buyer, or delivery of goods
to a wharfinger for safe custody, is prima facie deemed to be a delivery
of the goods to the buyer. In light above provision I have considered
evidence produced on record. As already pointed out purchase of goods
by defendant’s agency is evidenced by invoices at Exhs. 5 & 6.
Consignment notes dated 30.01.2017 and 22.02.2017 marked Exhs. 5
& 6 respectively with invoices dated 28.01.2017 & 20.02.2017 are
evidence of delivery of goods to defendant in view of section 39 of the
Sales of Good Act. There is no reason to discard unchallenged version of
plaintiff about purchase of goods totaling Rs.2,69,280/ by defendant in
the name of his firm Vijay Agency. Plaintiff has placed on record office
copy of demand notice dated 02.05.2018 along with postal money
receipts and acknowledgment at Exh.7 colly. and office copy of demand
notice dated 09.07.2018 along with postal acknowledgment Exh.8
colly. The defendant did not give reply to demand notices of plaintiff
sent through his advocate despite receipt of the same. This fact also
gives credence to the testimony of plaintiff. In light of above discussion I
hold that plaintiff has established that defendant has purchased goods
worth Rs.2,69,280/ from him.
11. So far as interest claimed by plaintiff @ 18% perannum is
concerned, I do not find any such stipulation in invoices at Exhs.5 & 6.
It cannot be termed as contractual rate of interest. However,
considering that it is commercial transaction, I am inclined to grant
interest as per banking lending rate in view of section 34 of the Code of
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Commercial Suit No.129/19 ..7.. Judgment
Civil Procedure. It is common knowledge that nowadays lending rate
ranges between 9% to 16 %. I take into consideration mean of the
same and calculate interest on principal amount @ 12 % perannum. It
comes to Rs.79,101/ till the date of filing of suit. Thus, plaintiff is
entitled to total claim of Rs.3,48,381/. He is also entitled to future
interest @ 12% perannum on principal amount of Rs.2,69,280/ from
the date of filing of suit till realization of said amount. Hence, I answer
point Nos.1 and 2 accordingly and pass following order:
ORDER
1. Commercial Suit is partly decreed with proportionate costs.
2. Defendant shall pay an amount of Rs.3,48,381/ (Rupees Three
Lakhs Forty Eight Thousand Three Hundred and Eighty One
only) and so also future interest @ 12% perannum on principal
amount of Rs.2,69,280/ (Rupees Two Lakhs Sixty Nine
Thousand Two Hundred and Eighty only) from the date of filing
of suit till realization of said amount to the plaintiff.
3. Defendant shall pay proportionate costs of the suit to plaintiff as
per section 35 of the Code of Civil Procedure.
4. Decree be drawn up accordingly.
(M. T. Asim)
Judge
Date : 29.01.2020 Gr. Bombay
Typed on : 29.01.2020
HHJ signed on :
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Commercial Suit No.129/19 ..8.. Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.01.2020
JUDGMENT/ORDER signed by P.O.
on
30.01.2020
JUDGMENT/ORDER uploaded on 31.01.2020
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