Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.1186/2019
MHCC010097282019 Presented on : 21/09/2019
Registered on : 25/11/2019
Decided on : 24/01/2024
Duration : 04Y 04M 04D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY CIVIL SUIT NO.1186 OF 2019
(CNR – MHCC010 097282019)
FALCO AUTO CORPORATION, A proprietary firm,
having its office at 22, Dilip Niwas, Benham
Hall Lane, Opera House, Mumbai 400 004.
Through its ProprietorMrs. Kamaljit Kaur Chadha
Indian, Inhabitant of Mumbai.
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] ..Plaintiff
Versus
1. JAIN TRACTOR,
Proprietor firm having their address at 119,
Rana Sangha Bazaar, Chittorgarh – 312 001
State – Rajasthan.
2. LAXMI LAL BORDIA, adult, Indian, Inhabitant,
Proprietor of defendant No.1, Jain Tractor,
Address at 119, Rana Sangha Bazaar, Chittorgarh
312001, State – Rajasthan.
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] ..Defendants
Appearance :
Learned Advocate Ashneer Saluja for plaintiff.
None for defendants (Exparte ).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 24/01/2024.
J U D G M E N T
1 The instant suit is filed for recovery of amount, contending
that the plaintiff is having business of trading motor spare parts and
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defendant No.1 is a retail trading business of spare parts. Defendant
No.2 is proprietor of defendant No.1 company. It is the contention of
plaintiff that as per the order of defendants, the plaintiff has supplied
the goods from time to time and raised four invoices of Rs.1,37,659/
with lorry receipts. The defendants have received the goods delivered
through Gangor Logistics (P) Ltd. It is further contended by plaintiff
that defendant had issued two cheques which were dishonored with
remark “Insufficient Funds” after which the defendant neglected to pay
the amount under the invoice. Therefore, the plaintiff through his
advocate issued legal demand notice calling upon defendant No.1 to
pay the amount. Upon receipt of notice, the defendants out of fright
issued two demand drafts of Rs.20,000/ and Rs.16,000/. Thereafter,
the defendants failed to make the payment of remaining due amount.
Hence, the plaintiff has filed this suit for recovery of due amount with
interest at the rate of 18% per annum.
2 In response to the writ of summons vide Exhibit05,
summons were served upon the defendants, but they failed to appear
before the Court. Hence, as per order in roznama dated 29/01/2020,
suit proceeded exparte against the defendants.
3 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :
POINTS FINDINGS
1 Does the plaintiff prove that the
defendants are in due of balance
amount ?
Affirmative
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2 Does the plaintiff prove that it is entitled
to charge interest as prayed for ?
Partly Affirmative
3 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
4 What order ? As per final order.
R E A S O N S
4 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied on various
documents (Exhibit08 to Exhibit11) under list (Exhibit07). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit06) alongwith documents as per list (Exhibit07).
The plaintiff filed suit for recovery of due amount of Rs.1,54,699/
with interest of 18% on principal due amount of Rs.1,34,524/.
However, on perusal of invoices alongwith its lorry receipts (Exhibit
08), it appears that defendants were in due of payment of
Rs.1,37,659/, out of which they have made part payment, but they
failed to pay the remaining due balance amount of Rs.1,01,659/. The
plaintiff has also filed the legal demand notice dated 11/03/2019
(Exhibit09) and original letter dated 20/03/2019 under the letterhead
of defendant (Exhibit10) relating to demand drafts of Rs.36,000/.
The plaintiff has claimed part payment from the defendants, therefore
after deducting the amount of Rs.1,01,659/ are due and recoverable
from the defendant, thus, there is no reason to disbelieve the
contention of plaintiff, which remains unchallenged. Hence, suit
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deserves to be decreed as per the provisions of Order XXXVII Rule 2(3)
of the Code of Civil Procedure.
6 There is nothing on record to show that the defendants
have paid the outstanding amount. Their absence and omission to
appear before the Court on being served with the writ of summons
shows that they have no substantial defence and have admitted the
claim of plaintiff. Therefore, the plaintiff is entitled for recovery of
amount of Rs.1,01,659/.
7 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18% per annum from the defendants, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendants. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of last payment i.e.
20/03/2019, till its full realisation. In view of above discussions, I
answer point No.1 in affirmative and point Nos.2 and 3 in partly
affirmative.
8 As the defendants have made plaintiff constrained to file
the suit, they are also liable to pay the costs. In the result, I proceed to
pass the following order :
ORDER
1. Summary Civil Suit No.1186 of 2019, is hereby partly
decreed with costs.
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2. Plaintiff is entitled to recover an amount of
Rs.1,01,659/ alongwith interest at the rate of 9% per
annum from 20/03/2019, till its full realisation from
the defendants.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 24/01/2024 C.R. No.84
Typed on : 24/01/2024
Draft corrected on : 24/01/2024
Signed on : 25/01/2024
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“Certified to be true and correct copy of the original signed order”.
25/01/2024
at about 05.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.84, Mazgaon,
Mumbai.
Date of pronouncement of Order : 24/01/2024
Order signed by Hon'ble Judge on : 24/01/2024
Order uploaded on : 25/01/2024
at about 5.15 p.m.
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