Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Commercial Suit No.104/2019 ..1.. Judgment
Lodged on : 31.07.2019
Decided on : 19.12.2019
Duration : 0 y, 4 M. 20 D.
CNR No.MHCC010080052019
Exh.25
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
COMMERCIAL SUIT NO.104 OF 2019
Shantilal Rikhabdas Jain
Son of Late Rikhabdas Jain, Aged : 69 years
Senior Citizen, Occupation : Business
Indian Inhabitant of Mumbai, carrying on
business under name and style of
Shantilal Mahendrakumar & Company
at Shilpin Centre Commercial Premises
CoOperative Society Limited, Unit No.115,
1st Floor, 40, G. D. Ambekar Road,
Wadala (West), Mumbai – 400 031 .. Plaintiff
Versus
1. Dipen D. Chandruva
Son of Dhansukh Shamji Chandruva
Karta and Manager of Dipen D. Chandruva
Hindu Undivided Family, carrying on business
under Hindu Undivided Family, Carrying on
business under N. D. Enterprises.
2. Gaurva Chandruva
Occupation : Business,
Beneficiary/CoParcener of Dipen D. Chandruva,
Hindu Undivided Family,
Proprietor of N. D. Enterprises.
3. Namrata Chandruva
Wife of Dipen D. Chandruva
Beneficiary of Dipen D. Chandruva,
Hindu Undivided Family,
Proprietor of N. D. Enterprises.
All the defendants commonly at
202, Sheetal Enclave, Near Tangent
Furniture Mall, Off Link Road, Chinchbunder
Road, Malad (West), Mumbai – 400 004 and
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Residing at : A2 Wing, 1804 Rajyog Niwas,
18th Floor, M.G. Road, Opp. Tulsi Tower,
Behind City Centre Mall, Goregoan (West),
Mumbai – 400 104. .. Defendants
Mr. Krishnagopal S. Tripathi, advocate for plaintiff
None for defendants.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 19th December, 2019
JUDGMENT
Plaintiff has filed suit for direction to defendants to pay severally
and jointly total sum of Rs.19,74,456.11 and future interest @ 18% per
annum on Rs.15,37,000/ from the date of filing of suit till payment
and/or realization in full with costs.
In brief case of the plaintiff is as under:
2. Plaintiff is sole proprietor of Shantilal Mahendrakumar &
Company situated at Shilpin Centre Commercial Premises CoOperative
Society Limited, Unit No.115, 1st Floor, 40 G. D. Ambedkar Road,
Wadala (West), Mumbai 31 and its Godown place at Dropadi Chhaya
Compound, Thane Bhiwandi Road, Purna Village, Bhiwandi, District
Thane and doing business as importer, trader, supplier of all types of
“Plastic Raw Materials such as, Granules and power materials including
chemicals, metals and electronic etc.
3. Defendant No.1 is karta and manager of Dipen Dhansukh
Chandruva, HUF, runs and manages and look after a firm namely N. D.
Enterprises. Defendant No.2 is brother of defendant No.1 and
beneficiary/CoParcener of Dipen D. Chandruva, HUF. Defendant No.3
is wife of defendant No.1 and also beneficiary of Dipen D. Chandruva,
HUF. Defendants are engaged in the business of selling plastic
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Commercial Suit No.104/2019 ..3.. Judgment
materials and having common office at Malad (West). All three
defendants jointly and severally availed benefit of sale proceeds of
Plastic Granule materials sold and delivered by plaintiff to the firm N.D.
Enterprises and as such all the three defendants are jointly and severally
liable to pay plaintiff's dues. Defendant Nos.2 and 3 in meeting dated
21.11.2018 agreed and confirmed to pay creditors dues including
plaintiff's dues.
4. In pursuant of the order received from defendants; plaintiff sold
and delivered plastic granule materials to defendants on 10.11.2017
and 18.04.2018 for total sum of Rs.25,27,000/ and same were duly
received, acknowledged and consumed by defendant Nos.1 and 2
without raising any dispute about quality, quantity and rates of the
materials. There is an outstanding dues of the plaintiff amounting to
principal sum of Rs.15,37,000/ along with accrued interest @ 18% per
annum from due date of respective tax invoices till payment, which are
still due and payable by defendants jointly and severally to plaintiff.
5. In pursuant of the order of defendants; plaintiff sold and
delivered 10,000 kilograms of plastic granule materials to defendants
vide tax invoice No.46/201718 dated 10.11.2017 for Rs.21.47,600/
and same has been received and acknowledged by the defendants.
Towards the same, defendants made part payment of Rs.10,00,000/ by
RTGS on 02.01.2018 through Bank of Baroda, branch at Malad West
and also issued their own ledger account for 01.04.2017 to 31.03.2018.
Thereafter, towards payment of invoice No.46/201718, defendants
also issued a cheque No.000948 dated 08.02.2018 for Rs.11,47,600/
drawn on Bank of Baroda but same was returned unpaid/dishonoured
with reason, Funds Insufficient. Therefore, plaintiff called upon
defendants who informed him that due to financial difficulties they
could not arrange for funds and requested time with assurance to pay
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along with accrued interest. Thereafter upon demand of plaintiff;
defendants issued fresh postdated cheque No.000431 dated
22.04.2018 for Rs.11,47,600/ drawn on HDFC Bank Limited, signed by
defendant No.2 against Tax Invoice No.46/2017018. However, same
was returned unpaid/dishonoured with reason, Funds Insufficient.
6. Plaintiff upon receipt of order from defendants further sold and
delivered 3,300 kilograms of plastic granule materials to defendants
vide tax invoice No.04/201819 dated 18.04.2018 for Rs.3,89,400/
and same has been received and acknowledged by the defendants.
Further, cheque No.000431 dated 22.04.2018 issued by the defendants
for Rs.11,47,600/ was returned unpaid/dishonoured with reason,
Funds Insufficient. Thus, defendants have cheated the plaintiff and
caused him to suffer financial losses and damages.
7. Principal balance sum of Rs.15,37,000/ was due and payable by
defendants to plaintiff along with accrued interest @ 18% per annum
on delayed payment. Defendants towards discharge of their admitted
and confirmed liability issued cheque No.001238 dated 15.10.2018 for
Rs.15,37,000/ drawn of HDFC Bank (signed by defendant no.1).
However, upon presentation of said cheque, it was dishonoured for
reason funds insufficient. Therefore, plaintiff issued a statutory demand
notice dated 20.10.2018 and called upon defendant No.1 to pay the
sum of Rs.15,37,000/. Said demand notice was duly received and
acknowledged by defendant No.1 and he falsely replied the same
through his advocate's letter dated 15.11.2018; to which plaintiff has
given rejoinder through his advocate. Though defendants have received
the plastic granule material and enjoyed the fruits thereof, they are
jointly and severally liable to pay the plaintiff's dues amounting to
principal sum of Rs.15,37,000/ along with accrued interest on delayed
payment. Hence, this suit.
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8. Despite service of writ of summons; defendants failed to appear
before this Court. Therefore, suit is proceeded exparte against them.
9. 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? …Yes.
2. What order and decree? As per final
order
REASONS
As to point Nos.1 and 2 :
10. In order to prove the case, plaintiff examined himself and filed
affidavit of evidence as examinationinchief vide Exh.3 and relied upon
documents vide Exh.5 to Exh.23. Plaintiff closed his side vide pursis
Exh.24.
11. Plaintiff in examinationinchief reiterated the facts contained in
the plaint. His evidence shows that he deals in business of supplying all
types of plastic raw materials such as granules and powders and other
materials under the name and style Shantilal Mahendrakumar and
Company having office at Wadala – West, Mumbai and Godown at
Dropadi Chhaya Compound, Thane Bhiwandi Road, Purna Village,
Bhiwandi, District Thane. Defendant No.1 is karta and manager of
Dipen Dhansukh Chandruva, HUF, runs and manages and look after a
firm N. D. Enterprises. Defendant No.2 is brother of defendant No.1 and
beneficiary/CoParcener of Dipen D. Chandruva, HUF. Defendant No.3
is wife of defendant No.1 and also beneficiary of Dipen D. Chandruva,
HUF. Defendants are engaged in the business of selling plastic
materials and having common office at Malad (West). All three
defendants jointly and severally availed benefit of sale proceeds of
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Plastic Granule materials sold and delivered by plaintiff to the firm N.D.
Enterprises of defendants.
12. His evidence further shows that pursuant to order received by
him from the defendants at his office at WadalaWest, he sold and
delivered plastic granule materials to defendants on 10.11.2017 and
18.04.2018 for sum of Rs.21,47,600/ and Rs.3,89,400/ and same
were duly received, acknowledged and consumed by defendant Nos.1 to
3 without raising any dispute about quality, quantity and rates of
materials. Defendants have made part payment of Rs.10,00,000/ to the
plaintiff on 02.01.2018 vide RTGS towards said transaction. His
evidence further shows that defendants issued cheque No.00948 dated
08.02.2018 for Rs.11,47,600/ drawn on Bank of Baroda, Mind Space,
Mumbai in favour of plaintiff's firm however said cheque was returned
unpaid for reason fund insufficient. His evidence also shows that
defendants issued fresh postdated cheque bearing No.00431 dated
22.04.2018 for Rs.11,47,600/ drawn on HDFC Bank Ltd, Malad (East)
which was signed by defendant No.2 as authorized signatory of Yashmi
Polymers in respect of materials sold and delivered on 10.11.2017.
However, said cheque was dishonoured for the reason funds
insufficient. His evidence also shows that defendants towards discharge
of their liability issued cheque No.001238 dated 15.10.2018 for
Rs.15,37,000/ drawn on HDFC Bank Ltd., in favour of his firm and it
was dishonoured for reason funds insufficient.
13. His evidence shows that an amount of Rs.15,37,000/ is balance
as a principal amount and defendants are liable to pay said amount
along with accrued interest @ 18 % per annum. He further stated about
the issuance of demand notice to defendant No.1 being Karta of Dipen
D. Chandruva, HUF and about receipt of reply from defendant No.1 and
his rejoinder through his advocate dated 05.12.2018.
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14. Oral evidence of plaintiff is well supported by tax invoice dated
10.11.2017 (Exh.6) and tax invoice dated 18.04.2018 (Exh.12). It is
clear from Exh.6 that plaintiff had sold plastic granule to N. D.
Enterprises weighing 10,000 Kilograms and along with GST total value
of said goods arrived at Rs.21,47,600/. Same has been delivered to
N.D. Enterprises vide delivery Challan dated 10.11.2017 (Exh.7). It is
apparent from Exh.12 that on 18.04.2018, plastic granules weighing
3300 kilograms had been sold to N.D. Enterprises and it valued
Rs.3,89,400/ including GST. It was received on same date by N. D.
Enterprises as it is clear from the acknowledgement on Exh.12. It is
clear from Exh.10 that cheque dated 08.02.2018 of Rs.11,47,600/
issued for N. D. Enterprises by its proprietor has been returned unpaid.
It is apparent from Exh.11 return memo of said cheque that it was
returned for reason funds insufficient. Another cheque dated
22.04.2018 Exh.13 issued for Yashmi Polymers for the same amount
was also returned unpaid and it is clear from return memo Exh.14 that
again same was returned for reason funds insufficient. It is apparent
from cheque dated 15.10.2018 of Rs.15,37,000/ issued for N.D.
Enterprises in favour of firm of plaintiff (Exh.15) was returned unpaid.
Return memo Exh.16 shows that said cheque was returned for the
reasons funds insufficient. Exh.17 shows that plaintiff through his
advocate has issued notice to defendant No.1 being Karta and manater
of Dipen D. Chandruva, HUF carrying on business under the name and
style as N.D. Enterprises and demanded Rs.15,37,000/ balance amount
in respect of suit transaction. Acknowledgement Exh.18 shows that
defendant No.1 has received said notice. Exh.20 shows that it is reply of
defendant No.1 through his advocate to the plaintiff. In the said reply
notice defendant No.1 denied supply of plastic granules as contended
by the plaintiff however he admitted that he made payment of
Rs.10,00,000/ to the plaintiff by RTGS. He claimed the said amount
was paid an advance to the plaintiff but plaintiff did not supply plastic
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granules. He also denied that cheque dated 15.10.2018 was issued
towards discharge of liability but he admitted that said cheque is signed
by him as authorized signatory of N. D. Enterprises. He has taken
defence that contents of the same are not filled by him and plaintiff has
not returned said cheque after receiving the advance of Rs.10,00,000/
On the contrary, he has asked plaintiff to return the amount of
Rs.10,00,000/ to him. Office copy of rejoinder dated 05.12.2018
(Exh.21) issued by plaintiff through his advocate to the advocate of
defendants No.1 shows that plaintiff has denied allegations made by
defendant No.1 and reiterated the facts mentioned in his demand notice
dated 20.10.2018. Said notice was duly served upon advocate of
defendant No.1 vide Exh.23.
15. I have compared admitted signature of defendant No.1 over
cheque Exh.15 with signature on delivery memo Exh.7, tax invoice
Exh.12. These signatures appear identical. Oral evidence of plaintiff is
well supported by documents as discussed above and remained
unchallenged as suit proceeded exparte. There is no reason to
disbelieve version of plaintiff on solemn affirmation which is supported
by documents as discussed earlier. Defence of defendant No.1 in his
reply notice does not inspire confidence considering the documents
placed on record by the plaintiff. It is not believable that defendant
No.1 would have issued cheques drawn on different banks in favour of
firm of plaintiff as same would have to be returned to him after receipt
of advance sum of Rs.10,000,000/ by the plaintiff. It is to be noted that
in his reply notice dated 15.11.2018 Exh.20 defendant No.1 nowhere
mentioned as to why he issued cheque drawn on bank of Baroda in
favour of firm of plaintiff. He has not given any explanation in that
respect in his reply. It is million dollar question as to why defendant
no.2 given cheque to plaintiff if no delivery of item had been made. So,
contention of defendant No.1 in reply notice cannot be accepted. Even
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otherwise suit has been proceeded exparte against defendants and
evidence of plaintiff on solemn affirmation is not controverted.
Therefore, considering the oral evidence coupled with documents relied
by the plaintiff it can be said that plaintiff has established that there is
an outstanding amount of Rs.15,37,000/ against defendants towards
principal amount of suit transaction. So far as rate of interest is
concerned tax invoices Exh.6 and Exh12 show that there is term over
the same in respect of payment of interest @ 18 % per annum in case of
delayed payment of more than 10 days. It is commercial transaction and
when rate of interest is incorporated on tax invoice itself then I have no
hesitation to grant interest at the rate mentioned on tax invoice.
Plaintiff has specifically stated that Rs.15,37,000/ is outstanding
against defendants in relation to suit transaction towards principal
amount and he has claimed total sum of Rs.19,74,456/ inclusive of
interest from the defendants till 24.07.2019. Plaintiff is entitled to said
amount. So also he is entitled to future interest @ 18 % per annum on
the balance amount of Rs.15,37,000/. Hence, I answer point No.1 in
affirmative and pass following order:
ORDER
1. Commercial suit is decreed with costs.
2. Defendants Nos.1 to 3 do pay jointly and severally an amount of
Rs.19,74,456/ and future interest @ 18 % per annum on the
balance principal amount of Rs.15,37,000/ from the date of
institution of suit till realization of said amount.
3. Defendants do pay 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 : 19.12.2019 Gr. Bombay
Typed on : 19.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.12.2019
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
19.12.2019
JUDGMENT/ORDER signed by P.O.
on
20.12.2019
JUDGMENT/ORDER uploaded on 20.12.2019
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