Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment 3312/2019
MHCC010092502019
Presented on : 09-09-2019
Registered on : 10-12-2019
Decided on : 25-09-2023
Duration : 4 Y. 0 M. 16 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
S.C. SUIT No. 3312 OF 2019
Pankaj Ochhavlal Modi }
age 67 years, Occ: Business, }
Proprietor of M/s. Modi Electricals }
carrying business at 31 Ground }
Floor, Sardar Griha Bldg., Lohar }
Chawl, Mumbai 400 002 } ...Plaintiff
Vs.
Tukaram Tulshiram Magar, }
age not known, Occ: Business, }
Proprietor of M/s. Shivam Industries, }
having address at Shop No.132/133, }
Parmar Industrial Complex, }
Chinchwad, MIDC, Pune 411 019 } ...Defendant
Appearance
Learned Advocate Mr. Jagdish Nagar for the plaintiff.
None for the defendant, who is set exparte.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 25th September, 2023
JUDGMENT
This is a suit for recovery of sum of Rs.1,50,503/- with
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interest at the rate of 18% per annum.
2. The plaintiff’s case in brief is that the plaintiff Pankaj Modi
is a proprietor of M/s. Modi Electricals, 31, Ground Floor, Sardar Griha
Bldg., Lohar Chawl, Mumbai 400 002 and carrying on business in
respect of the electrical insulating and materials. The defendant
Tukaram Magar is a proprietor of M/s. Shivam Industries, Shop No.132-
133, Parmar Industrial Complex, Chinchwad, MIDC, Pune 411 019. The
plaintiff sold, supplied and delivered the electrical insulating materials
to the defendant from time to time under the invoices as set out in the
para No.2 of the plaint, worth Rs.1,52,503/-. The defendant never
raised any objection in respect of the quality, quantity and rates of the
said materials. The defendant had agreed to make payment of the
invoice within the due dates, failing which he agreed to pay interest at
the rate of 18% per annum. It is further stated that with respect to
invoice No.297 dated 09.01.2018, covering a sum of Rs.4,550/-, the
defendant made part payment of Rs.2000/- and as such a sum of
Rs.1,50,503 remained outstanding against the defendant and the same
is recoverable by the plaintiff with contractual interest at the rate of
18% per annum from the date of the invoices till actual payment is
made to the plaintiff. The plaintiff by issuing a demand notice dated
12.04.2019 through his advocate demanded the said outstanding
amount from the defendant. The defendant in spite of receipt of the
said demand notice failed and neglected to pay the outstanding amount
to the plaintiff. Hence, the suit.
3. From the perusal of the record, it appears that vide order
dated 18.02.2021 this Court after satisfying that the defendant has been
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duly served with the writ of summons, but he failed to appear in the
suit, the suit was directed to proceed ex-parte against the defendant.
The suit is accordingly heard ex-parte.
4. In view of the plaint averments, the following points would
arise for my consideration and I would record my findings thereon for
the reasons to follow:-
POINTS FINDINGS
1 Does the plaintiff prove that he sold and
delivered the defendant electrical insulating
materials during the period from 09.01.2018
to 29.01.2018 worth Rs.1,52,503/- on credit
?
No
2 Does the plaintiff prove that the defendant
had agreed to pay interest at the rate of 18%
per annum in case he fails to make payment
of sale price of the goods under the invoices
within due date ?
No
3. Does the plaintiff prove that a sum of
Rs.1,50,503/- is outstanding and legally
recoverable from the defendant ?
No
4. What Order and Decree ? Suit is dismissed.
REASONS
5. Point Nos.1, 2 & 3 : The plaintiff in order to establish his claim set
out in the suit adduced oral evidence of himself by filing his affidavit
Exh.4 in lieu of examination in chief. He also produced on record the
documents namely, office copies of invoices Exh.6 colly., extract of
ledger account maintained in the name of the defendant for the period
from 01.04.2017 to 31.03.2019 Exh.7 colly., office copy of Advocate’s
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notice dated 12.04.2019 alongwith postal receipt Exh.8 closed postal
envelope addressed to the defendant and having returned to the
plaintiff’s advocate by the post department and the certificate as
contemplated under the provision of Section 65-B of the Evidence Act,
Exh.12.
6. Heard the learned Counsel for the plaintiff who would
make submission that since there is no challenge to the oral and
documentary evidence adduced by the plaintiff, there is no reason to
disbelieve or discard the said oral and documentary evidence adduced
by the plaintiff whereby the plaintiff has established his claim in the
suit. Thus, according to the learned Counsel for the plaintiff, the suit
deserves to be decreed with costs.
7. From the perusal of the plaint, it is apparent that though
the plaintiff claims to be the proprietor of M/s. Modi Electicals and
defendant of Shivam Industries, he has not produced on record any
cogent and convincing evidence such as license issued under the
provisions of Maharashtra Shops and Establishments Act, to prove the
said fact. It may also be noticed that though the plaintiff hails from
Mumbai and the defendant, Pune, there is no pleading and evidence as
to when and how the defendant placed order with the plaintiff for
purchase of the electric goods, what were the terms of the
agreement/contract entered into between them. It is also pertinent to
note that vide bill/invoice Nos. 297, 301, 330, 332 and 343 dated
09.01.2018, 11.01.2018, 25.01.2018, 25.01.2018 and 29.01.2018, the
plaintiff is said to have sold, supplied and delivered the electrical
insulating materials to the defendant worth Rs.4,550/-, 61,921/-,
32,484, 51,509 and 2,039/-, the same does not indicate as to by what
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mode and manner the said goods were sent to the defendant and on
which date those goods were delivered to the defendant. The oral
evidence adduced by the plaintiff vide affidavit of examination in chief
Exh.4 also does not depict as to by what mode and when such goods
were sent and when such goods were actually delivered to the
defendant. The tax invoices dated 09.01.2018, 11.01.2018, 25.01.2018,
25.01.2018 and 29.01.2018, which are collectively marked as Exh.6 do
not indicate by what mode and manner the goods stated therein were
sent to the defendant, when the delivery of such goods was made to the
defendant, who accepted such delivery of the goods etc.. Thus, there is
no acceptable evidence adduced by the plaintiff to show and establish
the real transaction of sale-purchase of the goods between the parties.
8. It is also significant to notice that the signatures appearing
on Invoices (Exh.6 colly.), ledger Exh.7, certificate Exh.12 do not seem
to be the signatures of the plaintiff. In absence of any cogent and the
facts and circumstances leading to convincing evidence as regards to
sale-purchase transaction of the goods between the parties, it can hardly
be believed the bare words of the plaintiff that he sold, supplied and
delivered the goods worth Rs.1,52,503/- to the defendant under the Tax
Invoice Nos. 297, 301, 330, 332 and 343 (Exh.6 colly.) and the
defendant is liable to make payment covered thereunder to the plaintiff.
In this view of the matter, I am not inclined to accept the oral and
documentary evidence adduced by the plaintiff against the defendant in
support of his claim. Consequently, it can hardly be said that the
plaintiff has proved point Nos.1 to 3 against the defendant, so that the
suit could be decreed. I therefore, record my findings on point Nos.1 to
3 in negative.
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9. Point No.4 : In view of my above discussion, observations and
findings, the suit deserves to be dismissed. Hence, I proceed to pass
following order :
ORDER
1. The suit stands dismissed.
2. Decree be drawn up accordingly.
Date : 25.09.2023 (V. M. Pathade)
Direct Dictated on : 25/09/2023. Judge, C.R.No.62,
Transcribed on : 26/09/2023. City Civil Court,
Signed on : 26/09/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27.09.2023 at 11.00 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 25/09/2023
Order signed by P.O. on 26/09/2023
Order uploaded on 27/09/2023
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