Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm.SU No.1002019
MHCC010080362019
Presented on : 31072019
Registered on : 31082019
Decided on : 25112021
Duration : Y02, M03, D 25
IN THE CITY CIVIL COURT AT GREATER BOMBAY
COMMERCIAL SUIT NO.100 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 its authorised representative ]
Mr.Rajendra Harmalkar, ].....Plaintiff
V/s
M/s. Hastkamal Texchem Pvt. Ltd. ]
A company incorporated under the provisions of ]
Indian Companies Act, and having its address at, ]
8/10, Telwadi, Vithalwadi, Kalbadevi Road, ]
Mumbai400 002 ]
And also at : B36, Shrigaon, MIDC, Thane, ]
Badlapur (E),421 503, Maharashtra ]....Defendant
APPEARANCE :
Adv.Lalit Jain for the plaintiff.
Mr. Pravin Jain, Director of the defendant company alongwith his
authorised representative Mr.Nishit Jain for defendant.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 25th November, 2021
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JUDGMENT
This is suit under Section 2(1)(c) of the Commercial Courts
Act, 2015 for recovery of sum of Rs.20,37,667/ alongwith interest at
the rate of 16% p.a. from the defendant against the cost of goods sold.
In brief, facts of the plaintiff's case are as under :
2. 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 06.10.2018, amount of
Rs.20,75,019/ was due and payable by the defendant to the plaintiff.
As agreed, the defendant was required to make payment within 60 days
of receipt of the goods and in default, the defendant is liable to pay the
interest at the rate of 16% p.a. For part payment received from the
defendant due credit is given in the account of the defendant. In spite of
the same, amount of Rs.20,75,019/ is due and payable from the
defendant to the plaintiff. In spite of repeated request for the payments,
the defendant has failed to pay the same. Therefore, the plaintiff has
issued demand notice dated 09.01.2019, calling upon the defendant to
pay sum of Rs.20,75,019/ to the plaintiff. In spite of receipt of said
notice, the defendant has failed to pay the due amount.
3. After non starter report of preinstitution mediation held
under Section 12A of the Commercial Courts Act, 2015, the defendant
has made a part payment of Rs.55,938/ leaving behind balance of
Rs.20,19,081/. Therefore, the defendant is liable to pay sum of
Rs.20,37,667/ (Rs.20,19,081/ plus interest Rs.18,586/) alongwith
further interest at the rate of 16% p.a. on Rs.20,19,081/. With these
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contentions, the plaintiff has prayed for decree for recovery of said
amount against the defendant.
4. The defendant by written statement filed at Exh.05 resisted
this suit, contending that the suit is false, frivolous and vexatious. Since
so many years the defendant is purchasing goods from the plaintiff.
Prior to February, 2017, there was no outstanding balance due and
payable by the defendant to the plaintiff. 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
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 has 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 companies of the plaintiff 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 December, 2018. In the month of January, 2019, the
defendant received plaintiff's notice, claiming the amount of
Rs.20,75,019/ alongwith the 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.
5. It is further contention of the defendant that on
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30.05.2019, the defendant has paid Rs.55,938/ to the account of the
plaintiff. The defendant has denied that an amount of Rs.20,75,019/ is
due and payable to the plaintiff. The defendant has disputed the rate of
interest. With these contentions, the defendant has denied its liability
and prayed to dismiss the suit.
6. Heard the learned Advocate for the plaintiff and
defendant's representative. Issues framed at Exh.06 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 defendant is liable to pay sum
of Rs.20,37,667/ and further interest at the
rate of 16% p.a. on sum of Rs.20,19,081/
from the date of filing of the suit to the
plaintiff?
Yes
2. Whether the plaintiff is entitled for reliefs
claimed? Yes
3. What order and decree? Suit is decreed.
REASONS
AS TO ISSUE NO.1 :
7. The plaintiff has examined its Senior Executive,
Mr.Rajendra (PW1) at Exh.08. His authority is not disputed by the
defendant. He deposes that the defendant has time to time placed
orders for purchasing goods from the plaintiff. He relied on various
purchase orders dated 30.10.2017, 21.11.2017, 15.01.2018,
02.02.2018, 17.02.2018, 05.03.2018, and 10.03.2018 produced at
Exh.13 to 19. It show that defendant has time to time placed orders for
purchase of the goods from the plaintiff.
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8. The tax invoices Exh.20 (colly) are the invoices raised by
the plaintiff to the defendant in respect of the purchase of the goods.
They are total amounting of Rs.20,81,333/. Rajendra (PW 1) deposes
that the defendant has made part payment against the due amount and
after deducting the payment received, due and payable amount from
the defendant is Rs.19,94,081/. The plaintiff has relied on the
statement of account Exh.23 (colly). It shows that amount of
Rs.20,75,019/ was due and payable from the defendant. Rajendra
(PW1) further deposes that, on 30.05.2019, the defendant has paid
Rs.55,938/ leaving behind balance of Rs.20,19,081/. Thereafter,
during the pendency of the suit on 06.11.2020 the defendant has paid
Rs.25,000/. According to the plaintiff, by deducting the payments
received during the pendency of the suit, total amount of
Rs.19,94,081/ is due and payable from the defendant to the plaintiff as
principal amount.
9. In the notice reply exh.29 the defendant admits that orders
for purchase of the goods were placed with the plaintiff and goods were
delivered accordingly. It is also admitted that invoices were raised in
that regard. In the notice reply of the defendant, there is clear
admission regarding the unpaid due of Rs.20,75,019/. The defendant
has acknowledged said amount as due and payable to the plaintiff. In
spite of this fact, the defendant has denied its liability by the
contentions in the written statement. Hence, taking into consideration
the admitted fact in the notice reply, the defendant can not deny the
liability by their contentions raised in the written statement.
10. In the crossexamination of Rajendra (PW1) the defendant
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has not disputed the liability as to the principal amount due and
payable by the defendant to the plaintiff. The defendant has not cross
examined the plaintiff in that regard. Hence, the plaintiff's evidence
regarding the purchase order and invoices raised for the same
remained unchallenged. The defendant has not even disputed that
goods are sold and supplied by the plaintiff to the defendant. The
defendant has never raised any dispute with regard to the quantity and
quality of the goods. Section 42 of the Sale of Goods Act, 1930 deals
with the aspect of acceptance of the goods. It reads as follows:
''42. Acceptance The buyer is deemed to have accepted the goods
when he intimates to the seller that he has accepted them, or when the
goods have been delivered to him and he does any act in relation to them
which is inconsistent with the ownership of the seller, or when, after the
lapse of a reasonable time, he retains the goods without intimating to the
seller that he has rejected them.”
11. In the case before me, after delivery of goods, the
defendant retains the goods and has not intimated that he has rejected
them. Once the goods are delivered to the defendant and he did not
refuse it or did not communicate any damage, defect or demur in the
goods, within reasonable time to the plaintiff then, it is required to
consider that the goods are accepted by the defendant. Hence, the
defendant is liable to make payment in respect of the goods accepted by
it.
12. The evidence as to the statement of account is not disputed
by the defendant, hence, same is required to be believed as true and
correct. The evidence as to the purchase orders, tax invoices and
statement of account read together with the reply notice Exh.29 of the
defendant show that the defendant has placed orders for purchase of
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goods from the plaintiff, against which tax invoices Exh.20 (colly) were
raised by the plaintiff to the defendant. Goods are delivered to the
defendant. The defendant has not raised any dispute with regard to the
quantity, quality of the goods. Hence goods are accepted by the
defendant. Against the said goods, an amount of Rs.20,75,019/ was
due and payable by the defendant to the plaintiff.
13. The plaintiff by issuing demand notice dated 09.01.2019
Exh.26 and by calculating the interest on the principal amount has
called upon the defendant to make payment of Rs.20,75,019/. The
defendant has disputed the rate of interest. It is his contention that
there was no such agreement and there was no agreed term of 60 days
payment. On perusal of invoices Exh.20 (colly), it is noticed that in the
invoices, it is specifically mentioned that 16% interest will be charged
after due date and payment terms will be 60 days. The defendant has
not disputed the invoices and terms stated therein. There is no other
agreement in that regard to show that the interest on the overdue
amount is waived. Hence, the plaintiff is entitled for the interest at the
rate of 16% p.a.
14. As aforesaid amount of Rs.20,75,019/ was due and
payable from the defendant to the plaintiff. As admitted by the plaintiff
after preinstituion mediation on 30.05.2019, the defendant has made
part payment of Rs.55,938/ leaving behind balance of Rs.20,19,081/.
As admitted in the affidavit of evidence, the plaintiff has received
payment of Rs.25,000/ from the defendant during the pendency of the
suit. Hence, amount of Rs.19,94,081/ is due and payable as principal
amount from the defendant to the plaintiff with rate of interest at the
rate of 16% p.a. thereon. Therefore, the plaintiff has proved that
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amount of Rs.20,37,667/ is due and payable from the defendant along
with interest at the rate of 16% p.a. on principal amount of
Rs.19,94,081/ from the date of filing of the suit till its realisation.
Hence, I answer issue No.1 in the affirmative.
AS TO ISSUE NO.2 :
15. As the plaintiff proves that the defendant is liable to pay
amount of Rs.20,37,667/ alongwith interest at the rate of 16% p.a. on
principal amount of Rs.19,94,081/ from the date of filing of the suit
till its realisation, hence, the plaintiff is entitled to the reliefs claimed. In
the result, I answer issue No.2 in the affirmative.
AS TO ISSUE NO.3:
16. In view of my aforesaid findings recorded against issue
Nos.1 and 2, the suit is required to be decreed. Due to the defendant's
default in making payment of due amount, the plaintiff is constrained to
file this suit, hence, the defendant is liable to pay costs of this suit to the
plaintiff. In the result, in answer to issue No.3, I pass the following
order.
ORDER
1. Suit is decreed with costs.
2. The defendant do pay to the plaintiff an amount of
Rs.20,37,667/ (Rupees Twenty Lakh Thirty Seven
Thousand Six Hundred Sixty Seven Only) alongwith
interest at the rate of 16% p.a. on principal amount of
Rs.19,94,081/ (Rupees Nineteen Lakh Ninety Four
Thousand Eighty One Only) from the date of filing of
suit till realisation.
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3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :25.11.2021 Mumbai.
Dictated directly on computer on : 25.11.2021
Typed on : 25.11.2021
Signed by HHJ on : 26.11.2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.11.2021 at 4.50 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
25.11.2021
Judgment/order signed by P.O. on 26.11.2021
Judgment/order uploaded on 29.11.2021
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