Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. S. C. Suit No.2382/2019
MHCC010081322019 Presented on : 02/08/2019
Registered on : 29/08/2019
Decided on : 12/09/2023
Duration : 04Y 01M 12D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.44
S. C. SUIT NO.2382 OF 2019
Jeevandeep Edumedia Pvt. Ltd.
Having registered office at Sun Paradise
Business Plaza, First Floor, Senapati Bapat
Marg, Lower Parel, Mumbai-400 013.
Through its Assistant Legal Manager Mrs. Neha
Nachiket Kulkarni, Occupation : Service.
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] ..Plaintiff
Versus
1. Mr. Baburao Changdev Autade
Principal of Angel’s Paradise Primary Marathi
School, Plot No.154, Samarth Nagar, Savarkar
Chowk, Aurangabad 431001, Maharashtra.
2. Angel’s Paradise Primary Marathi School
154, Samarth Nagar, Savarkar Chowk,
Aurangabad 431002, Maharashtra.
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] ..Defendants
Appearance :-
Learned Advocate Hetal Vakil for plaintiff.
None for defendants (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 12/09/2023.
J U D G M E N T
1 This suit is filed for recovery of amount of Rs.1,63,912/-.
It is the contention of the plaintiff that it is carrying on business of
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selling books. The defendant No.1 is the principal of defendant No.2
school. In pursuant to the orders placed by defendants, the plaintiff has
sold, supplied and delivered goods through delivery challans from time
to time. The plaintiff raised various invoices from the period
07/07/2017 to 13/10/2017, in respect of supply of goods and also
maintained the account of transaction. As per the account, opening
balance as on 01/04/2017 is Rs.36,133/-, totaling to Rs.2,89,830/-. It
is also contended by the plaintiff that after persuasion and follow-up,
defendants had made part payments on various dates, thus, the
defendants paid Rs.1,39,825/- and failed to repay the balance due
amount of Rs.1,50,005/-, therefore, filed the instant suit.
2 In response to the writ of summons which were issued to
the defendants vide (Exh-04), the acknowledgment cards shows that
summons are served upon defendants, but they failed to appear before
the Court. Hence, as per order in
roznama dated 25/02/2021, suit
proceeded ex-parte against the defendants.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that the defendants
are in due of amount of Rs.1,50,005/- and
liable to pay to it ?
Affirmative
2 Does the plaintiff prove that it is entitled to
charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order As per final order.
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R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
documents (Exhibit-07 to 43) filed under list (Exhibit-06). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered the Claim
Affidavit (Exhibit-05) alongwith documents as per list (Exhibit-06). On
perusal of the copy of invoices, it reveals that the defendants have
failed to make payment of balance due amount of Rs.1,50,005/-.
Inconsequence of failure to pay the balance due amount under the
invoices, the plaintiff has issued a notice on 11/02/2019. Thus, the
plaintiff is entitled for recovery of balance due amount under the
invoices. There is no reason to disbelieve the contentions of plaintiff,
which remains unchallenged. Hence, suit deserves to be decreed as per
the provisions of Order XXXVII Rule 2(3) of the Code of Civil
Procedure.
6 On perusal of the record, it shows that plaintiff has raised
various invoices amounting to Rs.2,89,830/- and the defendants have
made part payments on various dates upto Rs.1,39,825/-. The absence
and omission on the part of the defendants to appear before the Court
shows that they have no substantial defence and have admitted the
claim of plaintiff.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendants, however, I
am of the view that it is exorbitant rate of interest. No doubt the
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plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendants. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of notice of
advocate for plaintiff i.e. 11/02/2019, till its full realisation. In view of
above discussions, I answer point No.1 in affirmative and point Nos.2
and 3 in partly affirmative.
8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :-
ORDER
1. S. C. Suit No.2382/2019, is hereby partly decreed
with costs.
2. Plaintiff is entitled to recover an amount of
Rs.1,50,005/- alongwith interest at the rate of 9% per
annum, from the date of notice of advocate for
plaintiff i.e. 11/02/2019, till its full realisation from
the defendant.
3. Decree be drawn up accordingly.
4. Court fees, if any, be refunded as per rule.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 12/09/2023 C.R. No.15
Dictated on : 12/09/2023
Transcribed on : 12/09/2023
Signed on : 14/09/2023
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“Certified to be true and correct copy of the original signed order”.
15/09/2023
at about 11.25 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 12/09/2023
Order signed by Hon'ble Judge on : 14/09/2023
Order uploaded on : 15/09/2023
at about 11.25 a.m.
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