Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1/6 Judgment in Com. Suit No. 483/2021
Lodged on : 31.07.2019
Admitted on : 17.10.2019
Decided on : 08.03.2023
Duration : Y M D
3 7 8
COMMERCIAL SUIT NO. 483 of 2021
CNR NO. : MHCC010080842019
Exh.19
M/s. Satyen Polymers Pvt. Ltd.
A company incorporated under the
provisions of the Companies Act, 1956
having its registered office at 307, A to Z
Industrial Premises, G.K. Marg, Lower
Parel, Mumbai 400 013. ...Plaintiff
Versus
Mr. Mahesh Damodar Phate
Proprietor of M/s. Mahesh Trading
Corporation, having his address at
MTC Fibrotech, Plot No. P5, Beside
Hotel Vihar, Hingna MIDC,
Nagpur 400 023. ...Defendant
Appearance:
Adv. Nisha Shah i/b. Kalpesh Joshi Associates for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE, (C.R.NO.31)
INCHARGE OF C.R.14
DATED : 8th MARCH 2023
J U D G M E N T
(Delivered on : 08.03.2023)
This is a suit filed by the plaintiff company against the
defendant for the recovery of the amount of Rs.2,56,549/ along with
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2/6 Judgment in Com. Suit No. 483/2021
interest at the rate of 18% per annum from the date of filing of the suit
till its realization.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a Private Limited Company engaged in the
business of manufacturing and selling polyester resins, gelcoats,
adhesives and performance coatings. The defendant is a proprietor and
carrying on the business as a manufacture of Fiberglass product. The
defendant placed orders for supply of the said product to the plaintiff.
The plaintiff supplied the said product to the defendant. The defendant
defaulted in making payment of five invoices during the period from
02.07.2016 to 23.07.2016 of Rs.2,00,481/ towards principal amount.
The defendant made part payment of Rs.33,063/ on 07.11.2016. The
plaintiff adjusted the said amount leaving the balance outstanding
payment of Rs.1,67,418/. The plaintiff repeatedly requested the
defendant through emails and telephone to make the payment of the
outstanding due amount under the said invoices. The defendant failed
to pay the due amount. Hence, the plaintiff by their notice dated
23.07.2019 called upon the defendant to pay the outstanding amount.
The notice was not served to the defendant. According to the plaintiff,
a sum of Rs.2,56,549/ is outstanding from the defendant. Hence, the
plaintiff was constrained to file the present suit for the recovery of
outstanding amount of Rs.2,56,549/ from the defendant with interest.
3. The suit summons was issued to the defendant by email.
The suit summons was duly served to the defendant through email.
The defendant failed to appear before the Court. Hence, in view of
order passed on 10.11.2022, the suit was proceeded exparte against
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3/6 Judgment in Com. Suit No. 483/2021
the defendant.
4. In support of the pleading, the plaintiff examined its
authorized signatory namely Rajeev Khera at Exh.5. The plaintiff filed
documentary evidence along with list Exh.6. The documentary evidence
are at Exh.7 to 17. The evidence closure pursis of the plaintiff is at
Exh.18.
5. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff proves that an
amount of Rs.2,56,549/ is
outstanding from the defendant?
In the affirmative
2) Whether plaintiff is entitled to
recover an amount of Rs.2,56,549/
from the defendant? If yes, at what
rate of interest?
In the affirmative.
At the rate of 12% per annum on
the principal amount.
3) What order and decree? As per final order.
R E A S O N S
6. Heard Learned Advocate Nisha Shah i/b. Kalpesh Joshi
Associates for Plaintiff at length.
As to Point Nos.1 & 2
7. It is the case of the plaintiff that on the request of the
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4/6 Judgment in Com. Suit No. 483/2021
defendant, the plaintiff sold, supplied and delivered the product and
accordingly raised five invoices. The defendant failed to pay the
outstanding amount of invoices. According to the plaintiff, total amount
of Rs.2,56,549/ is outstanding from the defendant.
8. In support of the pleading, the plaintiff examined its
authorized signatory namely Rajeev Khera at Exh.5, who deposed that
the defendant is a Proprietor of Mahesh Trading Corporation. As per
Purchase Order placed by the defendant, the plaintiff supplied product
and accordingly raised five invoices. There was no grievance by the
defendant regarding the quality and quantity of the product. He further
deposed that he continuously approached the defendant for payment
towards delivery of the goods, but the defendant gave assurance that he
will make payment. In spite of giving sufficient opportunity, the
defendant has purposefully neglected to clear the legal dues. Hence, the
plaintiff sent a statutory legal notice to the defendant dated 23.07.2019.
According to this witness, total amount of Rs.2,56,549/ is outstanding
from the defendant. The aforesaid oral evidence of the plaintiff is not
subjected to the crossexamination. The oral evidence of the plaintiff is
remained unchallenged.
9. The oral evidence of the plaintiff is supported by
documentary evidence. He proved five invoices at Exh.8 to 12, which
shows that the plaintiff has sold and delivered the product to the
defendant and raised invoices. The defendant duly received and
accepted the goods under the invoices. It is also seen from the copy of
email at Exh.13 that the plaintiff has issued letter to the defendant
through email and demanded outstanding amount, but the defendant
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did not clear the dues. The copy of legal notice at Exh.15 shows that the
plaintiff sent a legal notice to the defendant and demanded due
amount. The oral as well as documentary evidence tendered by the
plaintiff is remained unchallenged. Hence, I have no reason to
disbelieve the evidence of the plaintiff. The defendant failed to appear
before the Court and he also failed to oppose the claim of the plaintiff.
The evidence tendered by the plaintiff is not rebutted and it is sufficient
to prove his claim. The plaintiff claimed the principal amount of
Rs.1,67,418/ and amount of interest of Rs.89,131/ at the rate of 18%
per annum from the date of invoice till filing of the suit. The evidence
on record shows that the principal amount of Rs.1,67,418/ is due from
the defendant. The invoices show that in case of delay in receiving the
payment, the interest at the rate of 18% will be charged. The defendant
has accepted the product and not paid the due amount. Therefore, the
plaintiff is entitled to charge interest of Rs.89,131/ from the
defendant. In the present case, the plaintiff by leading oral as well as
documentary evidence sufficiently established that an amount of
Rs.2,56,549/ is outstanding from the defendant. Therefore, the
plaintiff is entitled to recover the said amount from the defendant.
10. So far as the rate of interest is concerned, the plaintiff has
claimed interest at the rate of 18% per annum from the date of suit till
realization. In my view, as per invoices, the agreed rate between the
parties is 18% per annum. Considering the nature of the transaction, I
am of the view that the interest at the rate of 18% per annum appears
to be just and reasonable and it can be granted. The cost of the suit is
liable to be imposed upon the defendant.
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11. In view of aforesaid discussion, I hold that the plaintiff is
entitled to recover the amount of Rs.2,56,549/ from the defendant
along with interest at the rate of 18% per annum from filing of the suit
till realization. Hence, I answer point no. 1 & 2 in the Affirmative and
point no. 3 accordingly. In the result, the suit needs to be decreed.
Hence, I pass the following order:
ORDER
1) Commercial Suit No. 483 of 2021 is decreed with costs.
2) The defendant do pay an amount of Rs.2,56,549/ (Rs.
Two Lakhs Fifty Six Thousand Five Hundred and Forty
Nine Only) to the plaintiff along with interest at the rate
of 18% per annum on the principal amount from the
date of filing of the suit till realization within three
months from the date of this decree.
3) Defendant shall bear the cost of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 08.03.2023 (A.S. Salgar)
Adhoc Judge,
Incharge C.R.14
City Civil Court
Gr. Mumbai.
Dictated on : 08.03.2023
Typed on : 08.03.2023
Checked & Signed on : 09.03.2023
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7/6 Judgment in Com. Suit No. 483/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13.03.2023 11.35 a.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO.31)
Date of Pronouncement of
Judgment/Order.
08.03.2023
Judgment/order signed by P.O on 09.03.2023
Judgment/order uploaded on 13.03.2023
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