Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Civil Suit
No.1165/2019
MHCC010097292019 Presented on : 21/09/2019
Registered on : 25/11/2019
Decided on : 09/10/2023
Duration : 04Y 00M 19D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.14
SUMMARY CIVIL SUIT NO.1165 OF 2019
Falco Auto Corporation, A proprietary firm,
having its office at 22, Dilip Niwas, Benham
Hall Lane, Opera House, Mumbai-400 004.
Through its Proprietor-Mrs. Kamaljit Kaur Chadha
Indian, Inhabitant of Mumbai.
]
]
]
]
] ..Plaintiff
Versus
1. Sharma Automobiles,
Proprietor firm having their address at Kothla
Road, Ahmednagar – 414 001,
State – Maharashtra.
2. Sunil Sharma, adult, Indian, Inhabitant,
Proprietor of defendant No.1, Sharma
Automobiles having their address at Kothla
Road, Ahmednagar – 414 001, State-Maharashtra.
]
]
]
]
]
]
]
] ..Defendants
Appearance :-
Learned Advocate Ashneel Saluja for plaintiff.
None for defendants (
Ex-parte).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 09/10/2023.
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
-- 1 of 6 --
..2.. Summary Civil Suit
No.1165/2019
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 invoice of Rs.23,466/- with
lorry receipt dated 01/09/2017. The defendants have received the
goods delivered through Saurashtra Roadways Bangalore. The
defendants made payment of Rs.5,000/- by bank deposit, Rs.3,466/-
by cash and again Rs.5,000/- vide cheque. He again issued cheque of
Rs.5,000/-, but on depositing in the bank for encashment, it returned
with remark as “Funds Insufficient”. Thus, the cheque of Rs.5,000/-
dated 15/03/2019 remained unpaid and dishonoured. The defendants
also failed to pay further amount, therefore, after deducting the
amount paid, Rs.10,850/- remained due and recoverable against the
defendants as on 29/09/2017. Therefore, 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 Exhibit-05,
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 ex-parte 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 amount of
Rs.10,850/- ?
Affirmative
-- 2 of 6 --
..3.. Summary Civil Suit
No.1165/2019
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 (Exhibit-08 to Exhibit-12) under list (Exhibit-07). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :-
5 The authorised person of plaintiff has tendered his Claim
Affidavit (Exhibit-06) alongwith documents as per list (Exhibit-07). On
perusal of invoice alongwith its lorry receipt (Exhibit-08), it appears
that defendants were in due of payment of Rs.23,466/-, out of which
they have made part payment, but they failed to pay the remaining
due balance amount of Rs.10,850/-. The plaintiff then issued notice on
13/09/2017, calling upon them to pay the outstanding amount. The
plaintiff has claimed part payment from the defendants and that
Rs.10,850/- are due and recoverable from the defendant, thus, there is
no reason to disbelieve the contention of plaintiff, which remains
unchallenged. Hence, suit 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
-- 3 of 6 --
..4.. Summary Civil Suit
No.1165/2019
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.10,850/-.
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 29/09/2017, 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.1165/2019, is hereby partly
decreed with costs.
2. Plaintiff is entitled to recover an amount of
Rs.10,850/- alongwith interest at the rate of 9% per
annum from 29/09/2017, till its full realisation from
the defendants.
3. Court fees, if any, be refunded as per rule.
-- 4 of 6 --
..5.. Summary Civil Suit
No.1165/2019
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 09/10/2023 C.R. No.15
Dictated on : 09/10/2023
Transcribed on : 10/10/2023
Signed on : 11/10/2023
-- 5 of 6 --
..6.. Summary Civil Suit
No.1165/2019
“Certified to be true and correct copy of the original signed order”.
11/10/2023
at about 05.26 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 09/10/2023
Order signed by Hon'ble Judge on : 11/10/2023
Order uploaded on : 11/10/2023
at about 05.26 p.m.
-- 6 of 6 --