Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1/7 Judgment in Com. Suit No. 193 of 2019
Presented on : 29082019
Registered on : 15112019
Decided on : 18042023
Duration : Y M D
3 7 20
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMERCIAL SUIT NO. 193 of 2019
CNR NO. : MHCC010090262019
Exh.16
M/s. Esteem Industries Pvt Ltd ]
Through Mr. Arif Sayyed, ]
having their office at : ]
106, Prospect Chamber, 317/321, ]
Dr. D. N. Road, Fort, ]
Mumbai 400 001. ] ...Plaintiff
Versus
M/s. Wildfab Textural Additives Company ]
Through its Proprietor, ]
Shri. K. K. Mukherji @ K. K. Mukhopadhyay, ]
Office at : ]
16A, A.L Daw Road, ]
Kolkata 700 137 ] ...Defendant
Appearance:
Adv. Mr. Sachin Bhaskar for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE, (C.R.NO.31)
DATED : 18th APRIL 2023
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2/7 Judgment in Com. Suit No. 193 of 2019
J U D G M E N T
(Delivered on : 18.04.2023)
1. The plaintiff has filed the present suit for recovery of
outstanding amount of Rs. 8,14,962/ from defendant with interest at
the rate of 24% per annum against cost of goods sold, supplied and
delivered to the defendant.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a private limited company registered under
the Companies Act and engaged in the business of manufacturing and
supplying comprehensive range of NonIonic, anionic, cationic,
amphoteric surfactants and other chemical products to their clients. The
defendant is a proprietary firm. The defendant approached the plaintiff
for supply of various chemical products. The plaintiff supplied the
required quality and quantity of products as demanded by the
defendant pursuance to the purchase orders. Plaintiff has raised various
invoices against the goods supplied to the defendant. The defendant has
duly acknowledged and confirmed the invoices raised by the plaintiff
from time to time. The defendant has not made any payment of the
invoices. Therefore, total amount of Rs. 6,20,517/ is outstanding from
the defendant. The plaintiff furnished debit note of Rs. 1,94,445/ on
30.09.2016 and 31.01.2018 to the defendant. Therefore, the defendant
is liable to pay an amount of Rs. 8,14,962/ to the plaintiff towards
outstanding payment. The plaintiff through his advocate issued legal
notice to the defendant on 27.10.2018. Thus, according to the plaintiff,
the total amount of Rs. 8,14,962/ is outstanding from the defendant.
Hence, the plaintiff filed present suit for recovery of amount of Rs.
814962/ from defendant with interest at the rate of 24 % per annum.
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3/7 Judgment in Com. Suit No. 193 of 2019
3. The suit summons was duly served to the defendant as per
affidavit of service at Exhibit2. The defendant failed to appear before
the Court. Hence, suit proceeded Exparte against defendant as per
order dated 21.09.2021.
4. In support of the pleadings, the plaintiff Mr. Arif Murtuza
Sayyed is examined at Exhibit6. Plaintiff filed the documentary
evidence at Exhibit8 to Exhibit14. The evidence closure pursis is at
Exhibit15.
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 the plaintiff proves that
an amount of Rs. 8,14,962/ is
outstanding from the defendant ?
In the affirmative
2) Whether plaintiff is entitled to
recover amount of Rs.8,14,962/
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 Mr. Sachin Bhaskar for the
plaintiff at length.
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4/7 Judgment in Com. Suit No. 193 of 2019
As to Point Nos.1 & 2
Both these points are interconnected with each other hence
are taken for discussion together.
7. It is the case of the plaintiff that on the request of the
defendant the plaintiff has sold and supplied and delivered goods to
defendant and raised invoices. The defendant has not paid any amount
to the plaintiff. According to the plaintiff, the amount of Rs. 8,14,962/
is outstanding from the defendant. At the outset, it is to be noted that
the defendant has not appeared before the Court, nor filed Written
Statement on record. The defendant has not denied the averments in
the plaint. Therefore, an inference can be drawn that the defendant has
deemed to have admitted the averments in the plaint.
8. The plaintiff in support of his claim has examined Mr. Arif
Sayyed at Exhibit6. He deposed in support of the suit claim. His
evidence is in consonance with the averments made in the plaint. He
has specifically deposed that the goods were supplied by the plaintiff to
the defendant and the plaintiff has raised the invoices. According to this
witness, an amount of Rs. 8,14,962/ is outstanding from the
defendant. The aforesaid oral evidence of the plaintiff remained
unchallenged. The defendant failed to take crossexamination of the
plaintiff. Therefore, the oral evidence of the plaintiff remained
unchallenged. Hence, I have no reason to disbelieve the version of the
plaintiff.
9. The oral evidence of plaintiff is supported by documentary
evidence at Exhibit8 to Exhibit14. Exhibit8 is the copy of Board
Resolution of plaintiff Company authorizing Mr. Arif Sayyed to plead
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5/7 Judgment in Com. Suit No. 193 of 2019
the case on behalf of the plaintiff. The plaintiff filed on record Tax
Invoices at Exhibit9 (collectively) along with Lorry Receipts which
shows that the plaintiff has supplied the goods to the defendant and
raised invoices for the same. The copy of Debit Notes at Exhibit10
(collectively) also shows that plaintiff has debited an amount of Rs.
45,418/ towards interest on the account of the defendant. Exhibit11
is the email exchanged between the parties. Copy of ledger account at
Exhibit12 shows that an amount of Rs. 8,14,962/ is outstanding from
the defendant. Plaintiff Company has maintained the ledger account in
regular course of business. Therefore, the entries made in it are correct.
As the defendant failed to repay the amount to the plaintiff, the plaintiff
has issued legal notice to the defendant. The copy of said legal notice is
at Exhibit13. The notice was duly served to the defendant. The
defendant also failed to repay the amount of the goods supplied by the
plaintiff to the defendant. Copies of invoices along with Lorry receipts
supports the contention of the plaintiff that the plaintiff has sold and
supplied and delivered the goods to the defendant. There is no
contention or evidence from the defendant to show that the goods were
not accepted by them. The defendant has not raised any dispute as to
the quality and quantity of goods supplied by plaintiff to the defendant.
The defendant have accepted the goods, and therefore, they are liable
to pay amount against the cost of the goods.
10. In the present case, the copy of ledger account goes to
show that total amount of Rs. 8,14,962/ is outstanding from the
defendant. The defendant have failed to make the payment of due
amount against the cost of the goods. Hence, plaintiff is entitled to
recover the amount of goods worth Rs. 8,14,962/ In my view, the oral
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6/7 Judgment in Com. Suit No. 193 of 2019
as well as documentary evidence tendered by the plaintiff was not
challenged by the defendant. Therefore, I have no reason to disbelieve
the version of the plaintiff.
11. In the present case, the oral and documentary tendered by
the plaintiff shows that total amount of Rs. 8,14,962/ is outstanding
from the defendant. Hence, plaintiff is entitled to recover outstanding
amount from defendant with interest.
12. Plaintiff has claimed interest at the rate of 24 % per
annum. The transaction between the parties is a Commercial
transaction. Therefore, plaintiff is entitled to charge interest at the rate
of 12 % per annum over the principal amount from the date of filing of
the suit till its realization. Hence, plaintiff is entitled to recover the
outstanding amount of Rs. 8,14,962/ from the defendant with interest
at the rate of 12 % per annum. Hence, I answer point no. 1 in
affirmative and point no. 2 accordingly.
13. In the light of aforesaid discussion, it is concluded that the
plaintiff has sufficiently proved his claim. Hence, plaintiff is entitled to
recover the outstanding amount of Rs.8,14,962/ from the defendant
along with interest at the rate of 12% per annum on the principal
amount from the date of filing of the suit till its realization. Hence, the
suit needs to be decreed. Hence, I pass the following order:
ORDER
1) Commercial Suit No.193 of 2019 is decreed with costs.
2) The defendant do pay an amount of Rs.8,14,962/ (Rs.
Eight Lakhs Fourteen Thousand Nine Hundred and
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7/7 Judgment in Com. Suit No. 193 of 2019
Sixty Two 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 its realization
within three months from the date of this order.
3) Defendant shall 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.
6) Commercial Suit No. 193 of 2019 is disposed of.
(Judgment pronounced in the open Court).
Dated : 18.04.2023 (Shri. A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 18.04.2023
Transcribed on : 19.04.2023
Checked & signed on : 19.04.2023
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8/7 Judgment in Com. Suit No. 193 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER (L.G)
19.04.2023 5.35 p.m. Mr. Mohit M. Patange
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
18.04.2023
Judgment/order signed by P.O on 19.04.2023
Judgment/order uploaded on 19.04.2023
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