Final Order 1

Order Details: Ex-parte Judgement
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MHCC010081892019
Presented on : 05082019
Registered on : 24102019
Decided on : 25022021
Duration : Y01 M06 D20
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 156 OF 2019
M/s. Chetana Book Depot, ]
a partnership firm, (Now known as Chetana ]
Publications (India) LLP, having its registered ]
office at 4th Floor, 'B' Wing, Building 'E' Trade Link]
Kamla City, Above Bombay Canteen, Lower Parel, ]
Mumbai 400 013. ]....Plaintiffs
V/s
1. National English High School, ]
Almas Colony, Masqsood Nagar Ghswala Complex]
Kausa, Mumbra, DistrictThane 400 612. ]
2. Amjad Daulat Khan, Age not known ]
C/o. National English High School, ]
Almas Colony, Masqsood Nagar Ghswala Complex]
Kausa, Mumbra, DistrictThane 400612 ]
3. Mr. Sufian A. Kazi, Age not known ]
C/o. National English High School, ]
Almas Colony, Masqsood Nagar Ghswala Complex]
Kausa, Mumbra, DistrictThane 400612 ]...Defendants
APPEARANCE:
Ld. Adv. Sudhakar Lakhani for plaintiffs.
None for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 25th February, 2021.
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Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks recovery of amount of
Rs.7,82,607/(Rupees Seven Lakhs Eighty Two Thousand Six Hundred
and Seven only) further interest at the rate of 18% per annum on the
principal amount of Rs.5,54,674/ (Rupees Five Lakhs Fifty Four
Thousand Six Hundred Seventy Four Only) from the date of suit till its
realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The plaintiff is a partnership firm had supplied educational
books to the defendants pursuant to the order placed by the defendants.
During the period from 20152016 to 20162017, the plaintiff
submitted invoices from time to time in respect of books supplied and
delivered to the defendants. The invoices clearly mentioned that
interest at the rate of 18% p.a. would be charged if the payment is
made after 30 days from the date of invoices. The defendants used to
make payment by cheques. The cheques were dishonored on some
occasions. The defendants also had returned goods worth
Rs.3,36,100/. The defendants had failed to make the payment of
Rs.6,21,674/ on 04.10.2016. The defendants had made an aggregate
payment of Rs.67,000/ on 10.02.2017. Out of which Rs.47,000/ were
paid in cash and Rs.20,000/ were paid by cheque. The said cheque
were dishonoured on presentation for encashment.
It is the case of the plaintiff that defendants had failed to
make payment of Rs.5,59,647/ due as on 04.10.2016 and sum of Rs.
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5,000/ towards bank charges. Inspite of requests on several occasions,
defendants had failed to make payment. The plaintiff, therefore, had
issued notice by RPAD on 26.10.2018 for payment of amount of
Rs.5,54,674/ with due interest. The notice was not replied by the
defendants. The plaintiff, therefore, had instituted the present suit for
recovery of amount of Rs. 7,82,607/further interest at the rate of 18%
per annum on the said amount of Rs.5,54,674/ from the date of suit till
its realization.
3. The defendants had failed to appear in the suit. Vide Order
dated 10.12.2020, the suit proceeded exparte against defendants.
4. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of Rs.7,82,607/(Rupees Seven
Lakhs Eighty Two Thousand Six
Hundred and Seven only) with interest
at the rate of 18% per annum on the said
amount of Rs.5,54,674/ from the date
of suit till its realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
5. Heard learned Advocate Sudhakar Lakhani for plaintiff.
6. The plaintiff in support of its case had examined Shaji
John, the Constituted Attorney at Exh.05. The plaintiff had relied upon
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following documents (Exh.06):
Sr.
No.
Particulars Exh.
1 True copy of the Power of Attorney 11 colly
2 Copy of Mediation Application Form filed before
the Mediator
12 colly
3 NonStarter report for the preinstitution Mediation 13
4 Invoice No. 15032.01 dated 24.06.2016 for
Rs.1,87,000/
14 colly
5 Invoice No. 15025.01 dated 24.06.2016 for
Rs.70890/
15 colly
6 Invoice No.15029.01 dated 24.06.2016 for
Rs.1,28,835/
16 colly
7 Invoice No. 15025.02 dated 28.06.2016 for
Rs.2,550/
17
8 Invoice No. 16119.01 dated 01.07.2016 for
Rs.57,226/
18 colly
9 Invoice No.17025.01 dated 05.07.2016 for
Rs.18,275/
19
10 Invoice No. 16856.01 dated 05.07.2016 for
Rs.17,425/
20
11 Invoice No. 16119.02 dated 05.07.2016 for
Rs.1,594/
21
12 Invoice No.17124.01 dated 06.07.2016 for
Rs.26,737/
22
13 Invoice No.16856.02 dated 09.07.2016 for
Rs.8,288/
23
14 Invoice No. 15029.02 dated 16.07.2016 for
Rs.26,584/
24
15 Invoice No. 15032.02 dated 16.07.2016 for
Rs.38,650/
25
16 Invoice No. 17124.02 dated 19.07.2016 for
Rs.12,750/
26
17 Invoice No.18420.01 dated 22.07.2016 for
Rs.43,223/
27
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18 Invoice No.15032.03 dated 27.07.2016 for
Rs.8,500/
28
19 Invoice No.17124.03 dated 10.08.2016 for
Rs.5,419/
29
20 Invoice No. 15032.04 dated 10.08.2016 for
Rs.9435/
30
21 Office copy of notice dated Nil sent by RPAD on
26.10.2018 from plaintiff's Advocate to the
defendants
31 colly
22 Copy of the statement of accounts for the period
from 01.04.2016 to 31.03.2018
32 colly
7. The witness for the plaintiff had reiterated all the
contentions raised by the plaintiff in the plaint. It is the contention of
the plaintiffs that in between 20152016 to 20162017, he had supplied
the educational books to the defendants worth Rs.6,21,674/. The
amount of Rs.47,000/ was repaid by the defendants. The cheque for
amount of Rs.20,000/ was dishonored on 10.02.2017. The balance
amount of Rs.5,54,674/ is not paid by the defendants. The plaintiff
time and again had demanded the amount and had issued notice dated
26.10.2018 (Exh.31 colly) to the defendants. The defendants had
returned back the certain goods. The defendants had failed to repay the
amount of Rs.5,59,674/.
8. The plaintiff had filed invoices at Exh.14 colly to Exh. 30.
They are as follows:
Sr.
No.
Particulars Exh.
1 Invoice No. 15032.01 dated 24.06.2016 for
Rs.1,87,000/
14
colly
2 Invoice No. 15025.01 dated 24.06.2016 for Rs.70890/ 15
colly
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3 Invoice No.15029.01 dated 24.06.2016 for
Rs.1,28,835/
16
colly
4 Invoice No. 15025.02 dated 28.06.2016 for Rs. 2,550/ 17
5 Invoice No. 16119.01 dated 01.07.2016 for
Rs.57,226/
18
colly
6 Invoice No.17025.01 dated 05.07.2016 for Rs.18,275/ 19
7 Invoice No. 16856.01 dated 05.07.2016 for
Rs.17,425/
20
8 Invoice No. 16119.02 dated 05.07.2016 for Rs. 1,594/ 21
9 Invoice No.17124.01 dated 06.07.2016 for Rs.26,737/ 22
10 Invoice No.16856.02 dated 09.07.2016 for Rs.8,288/ 23
11 Invoice No. 15029.02 dated 16.07.2016 for
Rs.26,584/
24
12 Invoice No. 15032.02 dated 16.07.2016 for
Rs.38,650/
25
13 Invoice No. 17124.02 dated 19.07.2016 for
Rs.12,750/
26
14 Invoice No.18420.01 dated 22.07.2016 for Rs.43,223/ 27
15 Invoice No.15032.03 dated 27.07.2016 for Rs. 8,500/ 28
16 Invoice No.17124.03 dated 10.08.2016 for Rs.5,419/ 29
17 Invoice No. 15032.04 dated 10.08.2016 for Rs. 9435/ 30
9. The invoices clearly point out that the interest at the rate of
Rs.18% p.a. would be charged, if the payment is made after 30 days
from the date of invoices. The plaintiff also had filed statement of
accounts (Exh.32 colly). The ledger account showing the transactions
involved in the suit.
10. The defendants had failed to appear in the suit. They had
not filed written statement and had not countered the allegations made
by the plaintiff. The contentions raised by the plaintiff in the plaint
have gone unchallenged. The invoices i.e. ledger account clearly points
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out the goods were supplied by the plaintiff to the defendants. The
plaintiff had successfully shown that the defendants in spite of receipt
of goods had not made the payment. The plaintiff had issued the notice
to the defendants prior to the institution of the suit and called them to
repay the amount. The notice was received by the defendant but was
not replied.
The defendants had two chances to counter the allegation
of the plaintiff. The defendants had not replied the notice nor had
contested the suit. It therefore has to inferred from the conduct of the
defendant that they implidely admitted the contents of the plaint and
also admitted that they do not have counter to the allegation made by
the plaintiff in the plaint. The evidence of the plaintiff have gone
unchallenged. The plaintiff has proved that he has supplied goods
worth Rs.6,21,674/ to the defendants. The plaintiff also had proved
the contractual rate of interest on failure to make payment after 30 days
from date of invoices was 18% p.a.
The plaintiff is entitled for recovery of amount of
Rs.7,82,607/ further is entitled to interest at the rate of 18% per
annum on the principal amount of Rs.5,54,674/ from the date of suit
till its realization. Hence, I answered point No. 1 “in Affirmative.”
In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The Defendants are directed to pay to the plaintiff a sum of
Rs.7,82,607/ (Rupees Seven Lakhs Eighty Two Thousand Six
Hundred and Seven) and are further directed to pay interest at the
rate of 18% p.a. on principal amount of Rs.5,54,674/ (Rupees Five
Lakhs Fifty Four Thousand Six Hundred and Seventy Four) from the
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date of filing of the suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 25.02.2021 Gr.Bombay at Mumbai.
Dictated on : 25.02.2021
Transcribed on : 02.03.2021
Signed by H.H.J.on : 04.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.03.2021 at 11.20 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
25.02.2021
Judgment/order signed by P.O. on 04.03.2021
Judgment/order uploaded on 06.03.2021
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