Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S. C. Suit No. 2883/19. 1 Judgment (Exh.9).
MHCC010092792019
Presented on : 09-09-2019
Registered on : 04-11-2019
Decided on : 24-09-2024
Duration : 5 years, 0 months, 15 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SHORT CAUSE SUIT NO. 2883 OF 2019
EXHIBIT NO.9.
Mr. Bharathan Suresh Babu )
Age: 60 yrs )
Office Address: Unit no: 19, 3rd floor, )
Mahalaxmi indl estate premises co-op. soc. ltd, )
Gandhi Nagar, Dainik Shivneri Marg, )
Lower Parel, Mumbai – 400013, )
Through its C.A. )
Mr. Abhijay Bhelkar, )
Recovery in Charge at Repro Graphics Pvt. Ltd. )...Plaintiff
Versus
Mr. Mario Ferreria (Director) )
Perfect Print Products Pvt. Ltd. )
Office Address – 27-A, Pooja Enclave, )
1st Floor, Ganesh Nagar, )
Kandivali - West, Mumbai, Pin No. - 400 067 )
Tel – No. 67241234 )...Defendant
Smt. Bhavna Rajesh Enmul i/b V.R.Gupta and Associates, Advocate for
the plaintiff.
None for the defendant. (Ex-parte).
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 24th SEPTEMBER, 2024.
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S. C. Suit No. 2883/19. 2 Judgment (Exh.9).
JUDGMENT
(Delivered on 24th September, 2024.)
1. This is suit for recovery of an amount of Rs.2,92,348.09
with interest at the rate of 18% p.a.
2. Factual aspects of the case are as follows :
The plaintiff pleads that it is a registered company and the
plaintiff has appointed one Mr. Abhijay Bhelkar as a Power of Attorney
Holder. The defendant and plaintiff share business relations. On
demand of the defendant, plaintiff supplied printing related items with
condition of payment of consideration amount within 30 days. The
plaintiff has supplied printing materials from 05/07/2013 to
24/12/2013. Thus, defendant was bound to pay Rs.2,03,800/-.
3. It is specific case of the plaintiff that the defendant has
received invoices during the course of business and he never disputed
the same. The defendant ought to have paid the price of the goods
within 30 days, but he failed. The plaintiff followed up for continuously
for three years, but in vain. The defendant is also bound to pay interest
at the rate of 18% p.a. on amount due. Thus, the defendant is bound to
pay suit amount. The plaintiff also states that he issued notice to the
defendant. The failure of the defendant constrained the plaintiff to
institute the suit. Hence the suit.
4. Inspite of service defendant failed to appear. Hence suit
proceeded ex-parte as per order dated 16/09/2023.
5. Thereafter the plaintiff filed affidavit of evidence of Abhijay
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S. C. Suit No. 2883/19. 3 Judgment (Exh.9).
Bhelkar at Exh.5 and he also filed documents alongwith list Exh.6 as
follows :
Sr.No. Particulars
1 Original Invoice with Acknowledgement. Except Page No.1
and 7 (xerox).
2 The Copy of Legal Notice.
3 Original Postal Receipt alongwith Acknowledgement.
4 The Copy of Reminder Legal Notice.
5 Original Postal Receipt alongwith Acknowledgement.
6 The True Copy of Board of Resolution (xerox).
7 The Copy of Power of Attorney (xerox).
8 The Particulars of Claim (xerox).
6. The plaintiff closed his evidence vide pursis Exh.7 and filed
written notes of arguments at Exh.8.
7. Learned advocate for the plaintiff argued in support of the
case of the plaintiff.
8. Considering facts, evidence and submission of learned
advocate for the plaintiff, following points arise for determination of the
suit :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover an amount of
Rs.2,92,348.09 with interest at the rate
of 18% p.a. ?
No.
2. Is suit within limitation ? No.
3. What order and decree ? As per final order.
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S. C. Suit No. 2883/19. 4 Judgment (Exh.9).
REASONS
AS TO POINTS NO.1 TO 3 :-
9. At the outset, it is apt to mention that pleadings and
evidence of the plaintiff remained unchallenged. Hence, there is no
reason to discard it at threshold.
10. The copies of invoices at Sr.no.1 of Exh.6 support the case
of the plaintiff that it had delivered the goods to the defendant. It also
issued notice to the defendant, but defendant failed to pay the price of
the goods. The invoices also support the contention of the plaintiff that
it was for the defendant to pay price of the goods within 30 days and
failure of the same the defendant is bound to pay interest at the rate of
18% p.a. Thus, the plaintiff succeeded to show that it had delivered the
goods as he claimed and it was entitled to recover the amount from the
defendant. Now peculiar question arises, whether the suit is within
limitation.
11. The plaintiff has filed the copy of last invoice with
acknowledgment dated 31/08/2013. It has also filed invoice dated
24/12/2013. The ledger account at Sr.no.1 of Exh.6 is maintained for
the period of 01/04/2018 to 13/02/2019. However, the ledger account
does not show any business transaction between the plaintiff and the
defendant after 24/12/2013. If the acknowledgement on invoice dated
31/08/2013 is taken into consideration, the plaintiff had arisen cause of
action to claim the amount on 30/09/2013. Even if the ledger account
for the year of 2013-2014 is taken into consideration, the plaintiff had
cause to institute the suit on 01/04/2014.
12. The mere fact that the plaintiff had issued notice to the
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S. C. Suit No. 2883/19. 5 Judgment (Exh.9).
defendant will not absolve the plaintiff from the period of limitation as
no such legal notice is mandatory to claim the price of the goods.
Therefore it is evident from the record that it was imperative for the
plaintiff to institute the suit on or before 01/04/2017. The plaintiff has
instituted suit on 09/09/2019 which is barred by law of limitation.
Therefore the plaintiff is not entitled to recover the amount from the
defendant. Accordingly point no.1 and 2 are answered.
13. The plaintiff has filed the suit after the period of limitation.
In such case, it would be just to direct the plaintiff to bear the cost of
the suit. In the result, following order is passed :
- ORDER -
Suit stands dismissed with cost.
-Sd/
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 24/09/2024. Mumbai.
1. Dictated on : 24/09/2024.
2. Transcribed on : 27/09/2024.
3. Placed for correction on : 27/09/2024.
4. Checked on : 27/09/2024.
5. Correction carried on : 01/10/2024.
6. Signed on : 01/10/2024.
7. Delivered to Certified : 01/10/2024.
Copy Section on
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S. C. Suit No. 2883/19. 6 Judgment (Exh.9).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/10/2024. 5.40 p.m. Order typed by Miss M.A.Kulkarni.
Order uploaded by Mrs. P.Y. Pawar.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 24/09/2024.
Judgment/Order signed by P.O. on 01/10/2024.
Judgment/Order uploaded on 01/10/2024.
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