Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm.SU No 22/2020
MHCC010087752019
Presented on : 22.08.2019
Registered on : 17.01.2020
Decided on : 18.04.2022
Duration : Y2, M3, D1
IN THE CITY CIVIL COURT FOR GR.BOMBAY AT MUMBAI
COMMERCIAL SUIT NO. 22 OF 2020
Mr. Pradeep Vasant Phalke, )
Aged 39 years, Occu: Business, )
A Sole Proprietor of M/s. Pradeep Enterprises, )
having address at, Shop No.140/141/142, )
Mahatma Jyotiba Phule Market, )
Fort, Mumbai400 001 )
Also having address at: )
G. APMC Fruit Market, )
Turbhe, Navi Mumbai ) ..… Plaintiff
Vs.
M/s. Arambhan Hospitality Services Limited )
(Formerly Known as Cawasji Behramji Catering )
Services Pvt. Ltd.) a Company registered under )
Companies Act, having its registered office at: )
210/202, BenstonB Wing, Sherly Rajan Road, )
Bandra (West), Mumbai 400 050 )
Also having Office at: 17, Bahubali )
Building, Opp. Peoples Book )
House, Cawasji Patel, Street, Fort, )
Mumbai 400 001. ) .... Defendant
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Appearances:
Adv. Ramesh D. Kamble for the plaintiff.
Adv. Bimal N. Bhabhda for the defendant.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 18th April, 2022
JUDGMENT
This is commercial suit for recovery of amount due against
the cost of goods sold by the plaintiff to the defendant.
In brief the plaintiff's case is as under.
2. The plaintiff is sole proprietor of M/s.Pradeep Enterprises
and doing business of sale and supply of fruits and vegetables. The
defendant is the registered company doing business of hospitality.
Pursuant to the agreement dated 01.07.2015, from June 2015 to August
2015, the plaintiff sold, supplied and delivered fruits, vegetables
amounting to Rs.26,71,242.02 to the defendant. Against which, the
defendant has made part payment of Rs.9,50,000/, leaving behind
balance of Rs.17,21,242.02. Cheque dated 16.06.2016 issued by the
defendant has been dishonored for the reason 'funds insufficient'.
Inspite of several demands, the defendant failed to make payment of
due amount and therefore, the plaintiff by demand notice dated
31.10.2017 called upon the defendant to make payment of due amount
of Rs.24,96,221.56. The defendant by reply notice dated 30.12.2017
and 05.02.2018 contended that it has made total payment of
Rs.12,95,000/. The defendant disputed the entries made in the
plaintiff's books of accounts. The plaintiff by email denied existence of
any error in books of accounts. The defendant is liable to pay
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Rs.24,96,221.56ps to the plaintiff. Therefore, to recover said amount
the plaintiff has filed this suit.
3. The defendant by written statement filed at Exh.4 resisted
this suit. It is the contention of the defendant that the suit is barred by
limitation. The plaintiff by his letter dated 04.12.2018 has confirmed
that balance amount of Rs.13,65,145.50ps as outstanding amount
payable by the defendant. The plaintiff in his ledger account for the
period from 01.04.2015 to 31.03.2016 admitted the payment made by
the defendant and receipt of total sum of Rs.12,95,000/ from the
defendant. No amount is due and payable by the defendant to the
plaintiff. The goods sold were perishable goods. There was short supply
of goods and they were of substandard quality. The plaintiff has
admitted said fact. The defendant has returned the defective goods back
to the plaintiff and plaintiff has accepted and acknowledged the same.
The plaintiff has also accepted the fact of short supply of goods. The
plaintiff has failed and neglected to give credit for the same. The
plaintiff assured that the account of the defendant would be reconcile
after considering the fact of return of goods and short supply. There was
over pricing of the goods. The plaintiff was called upon to reconcile
such invoices. The plaintiff was required to charge as per the rate
contract dated 01.07.2015. Rate contract was for 90 days only. Time
was essence of contract however, there was delay in supply of goods.
Due to short supply, non delivery and incomplete delivery there was no
delivery of goods. The defendant was required to procure goods from
other suppliers at higher rate. The defendant's contract with its clients
was canceled due to plaintiff's breach of contract. There was loss of Rs.
55,00,000/ to the defendant. After reconciliation, about December
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2018, the plaintiff confronted with breach of contract, losses, damages
incurred by the defendant. Plaintiff agreed to pay Rs.40,00,000/ to
compensate the defendant. The defendant denied that the plaintiff is
doing business of sale of fruits and vegetables. The defendant denied
that it has issued the cheque against the payment of due amount. The
defendant accordingly denied its liability and prayed to dismiss the suit.
4. Read the written notes of argument filed by the plaintiff at
Exh. 37. Heard the submissions of the plaintiff's advocate. No argument
of the defendant. Issues framed at exhibit08 are reproduced herein
below for my consideration, to which I record my findings thereon with
reasons as under:
ISSUES FINDINGS
1. Whether the plaintiff proves that, against the
fruits and vegetables sold, supplied and
delivered by the plaintiff to the defendant, the
defendant is liable to pay amount of
Rs.24,96,221.56ps to the plaintiff?
Yes, the defendant
is liable to pay
amount of
Rs.13,65,145.50.
2. If yes what amount is due and payable by the
defendant to the plaintiff and at what rate of
interest?
Rs. 13,65,145.50
@12% p.a. from
19.10.2015
3. Whether the suit is within limitation? Yes
4. What order and decree? Suit is decreed.
REASONS
AS TO ISSUE NOS.1 AND 2 :
5. The plaintiff to prove his case has examined himself as Mr.
Pradeep(PW1) at Exh. 09. The plaintiff alleges that as per the rate
contract dated 01.07.2015 (Exh.10) he has sold, supplied and delivered
fruits and vegetables to the defendant. Total amount of the said goods
was Rs.26,71,242.02. Against which the defendant has paid
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Rs.9,50,000/ leaving behind balance of Rs.17,21,242.02. The plaintiff
further alleges that amount of Rs.24,96,221.56 is due along with
interest @ 21% p.a. In the written statement the defendant admits that
there was such contract between the parties but, it is denied that goods
were supplied as per the contract. It is to be noted that in the written
statement it is the contention of the defendant that the plaintiff by his
letter dated 04.12.2018 has confirmed the outstanding balance
Rs.13,65,145.50 as due from the defendant. Therefore, according to the
defendant Rs.13,65,145.50 was the outstanding amount due and
payable by the defendant. Copy of said letter is relied upon by the
defendant as Exh. A attached to the written statement. The plaintiff by
affidavit of admission and denial filed at Exh.06, admitted this
document. He admits the contents therein. He also admits that it is
signed by him. Mr. Pradeep(PW1) also in his evidence admits this
letter. In the written notes of arguments also this letter is admitted.
Therefore, said letter is required to be taken on record as admitted fact.
Hence, same is marked as Exh. 38. This letter is issued by the plaintiff
to the defendant, wherein it is stated as follows:
"I, Mr. Pradeep Vasant Phalke Proprietor of "Pradeep
Enterprises" would like to inform you as per your last letter
dated 30.12.2017, we agreed and accept paid payment
and outstanding amount is correct as per you books of
accounts.
We agreed and accepted the received amount of
Rs.12,95,000/ in the form of cash and cheques. Payment
details mention in your letter & we also agreed and
accepted an amount Rs.13,65,145.50 balance towards you
which is remains to be paid us.
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We confirm to you total balance amount
Rs.13,65,145.50 is correct which is mention in you letter.
So we are requesting you please release our outstanding
amount as early as possible."
6. By reading the contents of this letter it is clear that the
plaintiff admits that the defendant has paid total amount of
Rs.12,95,000/ to the plaintiff. By this letter he further admits that
Rs.13,65,145.50 is the outstanding balance due and payable by the
defendant. In the said letter there is reference of defendant's letter
dated 30.12.2017. The said letter dated 30.12.2017 is the reply notice
of defendant filed at Exh.13. Wherein the defendant informed the
plaintiff that total payment of Rs.12,95,000/ has been made by the
defendant to plaintiff. In the said letter defendant admits its liability to
pay the amount against the transaction to the plaintiff and also admit to
pay the same within short time.
7. Considering the documentary evidence regarding rate
contract Exh.10 alongwith copies of invoices Exh.15 collectively the
plaintiff proves that pursuant to the said contract the plaintiff sold,
supplied and delivered goods to the defendant. Admitted letter dated
04.12.2018 exh. 38 and contentions of the defendant in that regard
proves the fact that against the goods sold, supplied and delivered
Rs.13,65,145.50 was due and payable from the defendant to the
plaintiff. So far as to the defendant's allegations regarding short supply
of goods and defective goods, there is no evidence on record hence,
these facts are not proved. Therefore, the plaintiff proves that against
the cost of goods, the defendant has failed to pay the outstanding
amount of Rs.13,65,145.50 to the plaintiff.
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8. So far the fact related with the payment of interest is
concern, in the rate contract and in the invoices there is no agreed term
regarding charging of interest or rate of interest on over due payment.
Due date for payment is also not mentioned therein. Last invoice (page
No.435 of exh.15 colly) was raised on 19.10.2015. As there is no term
agreed in respect of credit period, the payment became due
immediately. Whole amount of goods sold till then became due and
payable on 19.10.2015. Hence, the plaintiff will be entitled for the
interest from the said date. Therefore, the plaintiff will be entitled for
the interest from 19.10.2015. Considering the prevailing rate of interest
for commercial transactions charged by the bank, I am of the view that
rate of interest @12% p.a. will be proper rate of interest. Hence, the
plaintiff will be entitled to recover amount of Rs.13,65,145.50
alongwith interest @ 12% p.a from 19.10.2015 till its realisations. I
answer issue Nos. 1 and 2 accordingly.
AS TO ISSUE NO.3:
9. The defendant in written statement and also by reply notice
dated 31.10.2017 Exh. 12 and reply Notice dated 30.12.2017 Exh. 13,
admits that against the due amount time to time part payments have
been made by the defendant. The defendant by notice reply dated
30.12.2017 admitted the liability for payment due to the plaintiff. In
view of admitted letter 04.12.2018 Exh. 38 and its annexure last part
payment was made on 27.06.2016. The plaintiff for filing of the suit in
compliance of Section 12A of the Commercial Courts Act, 2015 has filed
application for preinstitution mediation on 21.02.2019. In view of
Section 12A (3) of the Commercial Courts Act, 2015 the period
undergone in preinstitution mediation shall be excluded. Therefore,
since the date of last payment made in June 2016 filing of suit on
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22.08.2019 excluding the period of preinstitution mediation, the suit is
within limitation. Hence, I answer issue No.3 in the affirmative.
AS TO ISSUE NO. 4:
10. In view of my findings to issues Nos.1 to 3, the suit is liable
to be decreed with costs. Therefore, in answer to issue No.4, I pass the
following order.
ORDER
1. Suit is decreed with costs.
2. The defendant do pay to the plaintiff an
amount of Rs.13,65,145.50 alongwith interest
@ 12% p.a. from 19.10.2015 till the date of its
realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 18.04.2022 Mumbai.
Directly dictated on computer : 18.04.2022
Signed by HHJ on : 20.04.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.04.2022 5.45 pm.
UPLOAD DATE AND TIME
(Mrs. M. M. Kadam)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
18.04.2022
Judgment/order signed by P.O. on 20.04.2022
Judgment/order uploaded on 20.04.2022
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