Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010087402019
Presented on : 21082019
Registered on : 21092019
Decided on : 11022021
Duration : 1Y, 5M, 21D
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 118 OF 2019
Benktesh Synth Processors Pvt. Ltd. ]
A Private Limited Company incorporated ]
under Companies Act, 1956 having office ]
at 384M, Dabholkarwadi, 5 th floor, ]
Kalbadevi Road, Mumbai400 002 ]…..Plaintiff
V/s
Rajesh C. Shah ]
An adult, Indian Inhabitant carrying on ]
business as Proprietor in the name and ]
style of Prop. Of M/s Rajesh Innovative ]
Fabrics B/131, Avib Kripa Building, Anjur ]
Phata, Above Hotel Desai Tadka, Bhiwandi, ]
Dist. Thane 421 302 ]….Defendant
APPEARANCE:
Ld. Adv. Pooja Rathod for plaintiff.
None for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 11th February, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree against
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defendant, directing him to pay to the plaintiff a sum of Rs. 4,38,988/
(Rupees Four Lakhs Thirty Eight Thousand Nine Hundred and Eighty
Eight Only) with interest at the rate of 18% per annum or at such other
rate as this Hon’ble Court may deem fit and proper from the date of
filing of suit till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
It is the case of the plaintiff that the plaintiff is a Private
Limited Company incorporated under Companies Act. The defendant is
carrying business in the name of M/s. Rajesh Innovative Fabrics. It is
the case of the plaintiff that pursuant to the orders by the defendant,
the plaintiff sold, supplied and delivered to the defendant textile goods
after getting the job work i.e. processing of goods which processed
goods have been duly received by the defendant in good and sound
condition alongwith the suit invoices as detailed herein below.
Date Invoice no. Amount Due date
20.12.2015 59 1,61,707/ 20.04.2016
31.12.2015 69 1,44,846/ 30.04.2016
31.12.2015 76 6,669/ 30.04.2016
17.01.2016 83 1,25,766/ 17.05.2016
Total 4,38,988/
It is the case of the plaintiff that no objection regarding
quality, quantity, rates, terms and conditions of the invoices was raised
by the defendant. The defendant had received, retained, accepted and
acted upon the invoices without any complaint. It is stated that written
contract came into the existence and subsisting with the plaintiff and
defendant.
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3. It is the case of the plaintiff that defendant agreed to make
payment within four months and also agreed to pay interest at the rate
of 18% p.a., if any delay to pay the same amount. The defendant had
issued the cheque bearing no. 266991 (Exh.19) dated 14.05.2016 for
amount of Rs.1,41,949/ drawn on ICICI Bank, Mulund branch,
Mumbai. The said cheque when deposited was dishonored. The
plaintiff had issued demand notices on 27.10.2017 and 21.02.2018
(Exh.20 & Exh. 21). The notices were received by the defendant but
had neglected to pay the amount. Therefore, the plaintiff by this suit
had sought to recover of the amount of Rs.4,38,988/ (Rupees Four
Lakhs Thirty Eight Thousand Nine Hundred and Eighty Eight Only) with
further interest on the same amount at the rate of 18% per annum or at
such other rate as this Hon’ble Court may deem fit and proper from the
date of filing of suit till its realization.
4. The defendant had not appeared in the suit, inspite of
service of suit summons. The suit is proceeded exparte against
defendant.
5. 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 a sum of Rs. 4,38,988/
(Rupees Four Lakhs Thirty Eight
Thousand Nine Hundred and Eighty
Eight Only) with interest at the rate of
18% per annum from the date of filing of
suit till its realization?
'In Affirmative'
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2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
6. The plaintiff in support of its case had examined Pradip
Kumar Pacheriwal at Exh. 03. The plaintiff had reiterated all the
contentions raised by him in the plaint. The plaintiff had relied upon
following documents (Exh.04):
Sr. No. Particulars Exh.
1 Office copy of Invoice No. 59 dtd. 20.12.2015 6
2 Office copy of Chalan No.62 dtd. 20.12.2015 7
3 Office copy of Chalan No.5244 dtd. 20.12.2015 8
4 Office copy of Invoice No. 69 dtd. 31.12.2015 9
5 Office copy of Challan No.74 dtd. 31.12.2015 10
6 Office copy of Challan No.5433 dtd. 29.12.2015 11
7 Office copy of Invoice No.76 dtd. 31.12.2015 12
8 Office copy of Chalan No. 81 dtd. 31.12.2015 13
9 Office copy of Chalan No. 5116 dtd. 13.12.2015 14
10 Office copy of Chalan No. 5189 dtd. 16.12.2015 15
11 Office copy of Invoice No. 83 dtd. 17.01.2016 16
12 Office copy of Chalan No. 89 dtd. 17.01.2016 17
13 Office copy of Chalan No. 5605 dtd. 07.01.2016 18
14 Xerox copy of Cheque No.266991 dt.14.5.2016 ArtA
15 Office copy of Notice dtd. 27.10.2017 19
16 Office copy of Notice dtd. 21.02.2018 20
17 Office copy of Notice dtd. 19.03.2019 21
18 Postal Receipt dtd. 19.03.2019 22
19 Postal Acknowledgment Card 23
20 Extract of Board Resolution 24
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The plaintiff had filed the copy of cheque (Ex.19) showing
that the cheque was issued for Rs. 1,41,949/ on 14.05.2019.
7. The plaintiff had discharged his burden by evidence
showing that goods were delivered to the defendant from 20.12.2015 to
17.01.2016 by invoices (Exh.6,9,12,16). The plaintiff also had relied
upon the challans (Exh.7,8,10,11,13,14,15,17,18,19).
8. The goods supplied by the plaintiff were received by the
defendant. The defendant had not raised any complaint regarding the
quality, quantity, rates, terms and conditions of the invoices. The
receipts of the invoices show the existing and subsisting of the contract
between the plaintiff and defendant. The defendant had issued cheque
showing that he had acknowledged his liability to make payment. The
plaintiff also had issued the notice demanding the payment. Inspite of
receipts of notice, the payment is not made by the defendant. The
plaintiff had discharged his burden showing that as per demand, goods
were supplied to the defendant. The defendant has failed to make
payment for the goods. The plaintiff is entitled for recovery of amount
as prayed in the suit.
9. It was for the plaintiff to show that it was agreed between
plaintiff and defendant that in default to make payment, rate of interest
would be charged at 18% per annum. There is no evidence to suggest
that the agreed rate of interest between the plaintiff and defendant was
18%.
The notice dated 27.10.2017 (Exh.20) issued by the
plaintiff to the defendant also do not disclose the agreed rate of interest
was 18% p.a. on the amount after due date.
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In facts and circumstances of the case, it would be
appropriate to direct the defendant to a sum of Rs. 4,38,988/ (Rupees
Four Lakhs Thirty Eight Thousand Nine Hundred and Eighty Eight
Only) with interest at the rate of 10% per annum from the date of filing
of suit till its realization.
Hence, point No. 1 is answered “in Affirmative.” In the result,
following order is passed.
ORDER
1. Suit is decreed with costs.
2. The Defendant is directed to pay to the plaintiff a sum of Rs.
4,38,988/ (Rupees Four Lakhs Thirty Eight Thousand Nine Hundred
and Eighty Eight) and further interest at the rate of 10% per annum
from the date of filing of the suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 11.02.2021 Gr.Bombay at Mumbai.
Dictated on : 11.02.2021
Transcribed on : 15.02.2021
Signed by H.H.J.on : 23.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.02.2021 at 3.00 p.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
11.02.2021
Judgment/order signed by P.O. on 23.02.2021
Judgment/order uploaded on 24.02.2021
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