Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 128/2019
Lodged on : 23.08.2019
Admitted on : 25.09.2019
Decided on : 08.12.2022
Duration : Y M D
3 3 15
COMMERCIAL SUIT NO. 128 of 2019
CNR NO. : MHCC010088212019
Exh.27
Calibre Chemicals Private Limited
A Private Limited Company duly registered
under the provisions of the Companies Act,
1956, having registered office at 703,
Dalamal House, 206, Nariman Point,
Mumbai – 400 021.
Through its Authorized person
Mr. Hemant Prabhakar Borase, Aged 41 years. ...Plaintiff
Versus
Mr. Bahadursinh V. Jadeja
Proprietor M/s. Krishna Salt Suppliers
Plot No. 247, Sector 1A,
Opp. Kutch Uday Building,
Gandhidham, Gujarat – 370 201.
Factory at
National Highway Road,
Santalpur – 385 350, Dist. Patan, Gujarat. ...Defendant
Appearance:
Adv. Ms. Sumi Soman for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 8th DECEMBER 2022
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2 Judgment in Com. Suit No. 128/2019
J U D G M E N T
(Delivered on : 08.12.2022)
The plaintiff company has filed the present suit for the
recovery of the amount of Rs.3,23,912/ from the defendant along with
interest at the rate of 18% per annum on the principal amount 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 duly registered
under the Companies Act. The defendant is sole proprietor of M/s.
Krishna Salt Suppliers. The defendant is manufacturer and supplier of
salt. The defendant approached the plaintiff in February 2018 for the
purchase of chemical being Potassium lodate. On 13.03.2018, the
defendant emailed their Purchase Order dated 20.02.2018 to the
plaintiff for purchase of 200 kg of Potassium lodate. The plaintiff
decided to sell their goods to the defendant and accepted Purchase
Order vide their email dated 16.03.2018. Accordingly, the plaintiff sold
and delivered goods to the defendant on 14.03.2018, vide invoice no.
DG171949 of Rs.2,57,600/. The said goods were duly received by the
defendant. The said goods were transported through Lalji Mulji
Transport Company. The defendant has not raised any dispute with
regard to quality and quantity of the goods. The plaintiff many times
requested the defendant to make the payment. On each time, the
defendant gave false promises to make the payment. The defendant did
not pay the invoice amount. Therefore, the plaintiff through their
Advocate sent demand notice on 24.01.2019 and called upon the
defendant to clear the outstanding amount. The plaintiff further
submitted that the Advocate for the plaintiff vide email dated
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3 Judgment in Com. Suit No. 128/2019
24.01.2019 emailed the said demand notice to the defendant. The
defendant neither replied the notice nor paid the amount to the
plaintiff. No payment has been made by the defendant till today.
According to the plaintiff, the total amount of Rs. 2,57,600/ towards
principal amount and the amount of interest of Rs. 66,312/ making the
total claim amount of Rs.3,23,912/ is outstanding from the defendant.
Hence, the plaintiff has filed the present suit for the recovery of the
amount of Rs.3,23,912/ from the defendant along with interest at the
rate of 18% per annum from the date of filing of the suit till its
realization.
3. The writ of summons was issued to the defendant through
R.P.A.D. As per report of postal authority, the defendant did not claim
the said R.P.A.D. packet. The defendant failed to appear before the
Court. Hence, as per order passed on 05.10.2021, the suit was
proceeded exparte against the defendant.
4. In support of the pleading, the plaintiff examined its
authorized signatory namely Lalit Singh at Exh.8. The plaintiff also
placed on record the documentary evidence along with list Exh.9.
Exh.11 is the certified true copy of Board Resolution, Exh. 12 is the
printout of email dated 20.02.2018 along with Purchase Order, Exh.13
is the printout of email dated 13.03.2018, Exh.14 is the copy of the
invoice dated 14.03.2018, Exh.15 is the photocopy of lorry receipt
issued by Lalji Mulji Transport Company, Exh.16 is the printout of email
dated 16.03.2018, Exh.17 is the printouts of emails dated 04.09.2018,
19.09.2018 and 03.10.2018, Exh.18 is the copy of demand notice dated
24.01.2019, Exh.19 is the original postal receipt bearing no.
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4 Judgment in Com. Suit No. 128/2019
EM726044498IN addressed to the defendant, Exh.20 is the original
postal receipt bearing no. EM726044484IN addressed to the defendant,
Exh.21 is the printout of the email dated 24.01.2019 along with
demand notice, Exh.22 is the copy of nonstarter report, Exh.23 is the
particulars of claim and Exh.24 is the original affidavit certificate under
Section 65B of the Indian Evidence Act. The evidence closure pursis of
the plaintiff is at Exh.25.
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 company
proves that an amount of
Rs.3,23,912/ is outstanding from
the defendant?
In the affirmative
2) Whether plaintiff is entitled to
recover an amount of Rs.3,23,912/
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 Ms. Sumi Soman for the Plaintiff
at length. The plaintiff also filed Written Notes of arguments at Exh.26.
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As to Point Nos.1 & 2
7. It is the case of the plaintiff that as per request made by the
defendant, the plaintiff sold and delivered the goods to the defendant
worth Rs.2,57,600/. The said goods were transported through Lalji
Mulji Transport Company. The defendant did not adhere to the terms of
the invoice. The defendant gave false promises to make the payment
soon. According to the plaintiff, the total amount of Rs.3,23,912/ is
outstanding from the defendant. It is to be noted that the suit is not
contested by the defendant. The defendant failed to file Written
Statement on record. The defendant has not denied the averment made
in the plaint. Therefore, it can be said that the defendant is deemed to
have admitted the averments made in the plaint, on account of failure
of the defendant to file Written Statement on record. Therefore, the
plaintiff is entitled for the decree, as the defendant has failed to file
Written Statement on record.
8. In support of the pleading, the plaintiff has examined its
authorized representative namely Lalit Singh at Exh.8. This witness has
reiterated the averment made in the plaint in his examinationinchief.
He has supported the case of the plaintiff. According to this witness, as
per the Purchase Order of the defendant, the plaintiff sold and delivered
the goods to the defendant worth Rs.2,57,600/. He also deposed that
as the defendant failed to pay the outstanding amount, the plaintiff sent
legal notice to the defendant. According to this witness, an amount of
Rs.3,23,912/ is outstanding from the defendant. The aforesaid oral
evidence of the plaintiff is not challenged by the defendant. The
defendant failed to take crossexamination of the plaintiff. Therefore, it
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can be said that the oral evidence of the plaintiff is not subjected to
crossexamination. Hence, I have no reason to disbelieve the version of
the plaintiff.
9. The oral evidence of the plaintiff is supported by
documentary evidence at Exh.11 to 24. Exh.12 is the printout of email
dated 20.02.2018 along with Purchase Order. Exh.14 is the invoice
dated 14.03.2018 which shows that the plaintiff has sold and delivered
the goods worth Rs.2,57,600/ to the defendant. Exh.15 is the copy of
lorry receipt issued by transporter namely Lalji Mulji Transport
Company which shows that the transport company has sent the goods
to the defendant on behalf of the plaintiff. Exh.16 is the email sent by
the plaintiff to the defendant dated 16.03.2018 which shows that the
plaintiff has dispatched 200 kg Potassium lodate to the defendant as per
their Purchase Order. Exh.17 colly. are the printouts of the emails
dated 04.09.2018, 19.09.2018 and 03.10.2018 sent by the plaintiff to
the defendant stating that the plaintiff not received the payment against
the invoice of Rs. 2,57,600/. Exh.18 is the copy of demand notice
dated 24.01.2019 sent by the plaintiff to the defendant calling upon the
defendant to pay the outstanding dues. Exh.23 is the particulars of
claim which shows the total amount of Rs. 3,23,912/ is outstanding
from the defendant.
10. In the present case, the oral as well as documentary
evidence tendered by the plaintiff was not challenged by the defendant.
The suit was not contested by the defendant. The oral as well as
documentary evidence produced by the plaintiff prima facie shows that
an amount of Rs.3,23,912/ is outstanding from the defendant.
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Therefore, the plaintiff is entitled to recover the said amount of
Rs.3,23,912/ from the defendant along with interest.
11. So far as the rate of interest is concerned, the plaintiff has
claimed interest at the rate of 18% per annum. However, I am of the
view that considering the nature of the transaction, it would be just and
proper to charge interest at the rate on which the monies are lent by the
nationalized banks in relation to the commercial transaction. In my
view, the rate of interest can be charged at the rate of 12% per annum.
In short, the plaintiff is entitled to recover an amount of Rs.3,23,912/
from the defendant along with interest at the rate of 12% per annum
from the date of filing of the suit till its realization. Hence, I answer
point no. 1 in the affirmative and point no. 2 accordingly.
12. In the light of above discussion, it is concluded that the
plaintiff has sufficiently proved that an amount of Rs.3,23,912/ is
outstanding from the defendant. Hence, the plaintiff is entitled to
recover the said amount together with interest from the defendant.
Hence, the suit needs to be decreed. In the result, I pass the following
order:
ORDER
1) Commercial Suit No. 128 of 2019 is decreed with costs.
2) The defendant do pay an amount of Rs.3,23,912/ (Rs.
Three Lakhs Twenty Three Thousand Nine Hundred and
Twelve Only) to the plaintiff along with interest at the
rate of 12% per annum on the principal amount from
the date of filing of the suit till realization within three
months from the date of this order.
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3) Defendant to 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 : 08.12.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 08.12.2022
Typed on : 08.12.2022
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9 Judgment in Com. Suit No. 128/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10.12.2022 11.00 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.
08.12.2022
Judgment/order signed by P.O on 10.12.2022
Judgment/order uploaded on 10.12.2022
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