Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: COMMERCIAL SUIT NO. 153/19 1
Received on : 19-09-2019
Registered on : 23-10-2019
Decided on : 17-02-2020
Duration : 00Y 04M 19D
IN THE CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 153 of 2019
(CNR NO.: MHCC01-009594-2019)
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. Hari Chemicals,
Through its Proprietor,
Shri.Mahesh Panchariya,
Office: 25/7, Pandhe
Apartment , Near Prabhakar
Maharaj Mandir, Samrat Chowk,
Solapur- 413 002. ….Defendant
Appearances:-
Advocate Ms.Archana Varpe for the Plaintiff.
Defendant Ex-parte.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 17th February, 2020
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COMMERCIAL SUIT NO. 153/19 2
J U D G M E N T
1. This is Commercial Suit for recovery of Rs.7,40,794/-(Rupees
Seven Lakhs Forty Thousand Seven Hundred and Ninety Four Only)
with interest at the rate of 24% p.a. from the date of the suit till
realization of amount.
2. According to the plaintiff, it is a registered company engaged in
the business of manufacturing and supplying chemical products. As per
demand of the defendant, from 03-09-2014 to 14-07-2015 the plaintiff
sold, supplied and delivered to the defendant chemical products from
time to time as per the invoices details as mentioned in Para 4 of the
plaint. On 31-01-2018 the plaintiff also issued debit note of
Rs.2,64,639/-. In total the amount due and payable by the defendant is
Rs.7,40,794/-. In discharge of said amount the defendant had issued
cheque dtd.31-12-2015 for Rs.4,90,000/- in favour of the plaintiff.
However, when presented the cheque was dishonored. The plaintiff
informed about it to the defendant, but the defendant did not make full
payment. The defendant made part payment of Rs.18,200/- only.
Thereafter, the defendant did not make any payment. Vide notice
dtd.27-10-2018 the plaintiff called upon the defendant to pay the
amount. However, the defendant did not comply to the same. Therefore,
the plaintiff claimed decree for Rs.7,40,794/- with interest at the rate of
24% p.a.. Hence, this suit.
3. Despite service of summons the defendant failed to appear.
Therefore, suit proceeded Ex-parte against the defendant.
4. Considering the material on record and submissions made on
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COMMERCIAL SUIT NO. 153/19 3
behalf of the plaintiff points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled
to recovery of amount as prayed?
Yes
2. At what pendente lite and
future interest ?
At the rate of 12% p.a.
3. What order and decree? As per final order
REASONS
AS TO POINTS NO.1 to 3:
5. The plaintiff examined its Authorized representative P.W.1 Aarif at
Exh.6. His testimony speaks that the plaintiff sold, supplied and
delivered to the defendant the chemical products as per the invoices of
which details are given in Para 5 of his Chief Examination Affidavit. His
testimony also speaks that, debit note for Rs.2,64,643/- was also raised
by the plaintiff against the defendant. The defendant had also issued
cheque dtd.31-12-2015 for Rs.4,90,000/- in favour of the plaintiff. But
the same was dishonored. The defendant made part payment of
Rs.18,200/-. However, still the amount remained to be payable by the
defendant.
6. His testimony is corroborated by the documents on record as the
Invoice cum Delivery Challans, debit note which reveal that the plaintiff
had sold, supplied and delivered to the defendant the goods as per the
invoices and para-4 of the plaint. It is clear that the defendant failed to
discharge the due amount. No doubt, it appears that the first invoices is
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COMMERCIAL SUIT NO. 153/19 4
of 03-09-2014 and the last invoice is of 17-07-2015, whereas the suit
has been filed on 19-09-2019. However, the defendant issued cheque of
Rs.4,90,000/- on 31-12-2015 in favour of the plaintiff. Thus, fresh
period of limitation started. The testimony of PW-1 Aarif speaks that
there has been exchange of the e-mails between the parties regarding
the payment. Same E-mails are placed on record. Vide E-mails dtd.02-
11-2017 and 13-04-2017 the defendant clearly admitted the amount
due and payable by them to be Rs.4,90,000/- and they mentioned the
monthly program as to how it would make the payment to the plaintiff.
Thus, these are the acknowledgments on behalf of the defendant by
virtue of which fresh period of limitation started. Considering these
circumstances and that the defendant did not challenge/contest the
case of the plaintiff, the plaintiff succeeded to prove his case. Therefore,
the plaintiff is entitled to recover the amount of Rs.7,40,794/-. So far as
the interest is concerned it is just and proper to grant pendente ilite and
future interest at simple rate of 12% p.a. from the date of suit till
realization of amount. Hence, point No.1 is answered in the affirmative
and and point No.2 is answered as that the plaintiff is entitled to the
interest @ 12% p.a. from the date of suit till realization of the amount.
In view of Para-499 of Civil Manual court fees has to be refunded to the
plaintiff. In answer to point No.3 order as follows is passed.
ORDER
1. The suit is decreed with costs as under:-
2. The Defendant shall pay to the plaintiff amount of Rs.7,40,794/-
(Rupees Seven Lakhs Forty Thousand Seven Hundred and Ninety Four
Only) with simple interest @ 12% p.a. on the principal amount of
Rs.4,90,000/- from the date of suit till realization of the amount.
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COMMERCIAL SUIT NO. 153/19 5
3. Court fees be refunded to the plaintiff as per rules.
4. Decree be drawn up accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date:17/02/2020 City Civil Court,Gr. Mumbai
Dictated on : 17/02/2020
Signed on : 18/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/02/2020 at 2.35p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 17/02/2020
Judgment/Order signed by P.O. on 18/02/2020
Judgment/Order uploaded on 20/02/2020
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