Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit 204/2019
MHCC010099532019 Presented on : 27/09/2019
Registered on : 22/11/2019
Decided on : 22/11/2022
Duration : 3Y/00M/00D
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.204 of 2019
M/s Parekh Sales Corporation,
a proprietorship concern of M/s Popat
Ramchandra Parekh, HUF, through Mr.
Popat Ramchandra Parekh, Age 56 years,
Karta and Manager of this HUG, doing and
carrying on his business at 46, Nath Madhav
Lane, Ganesh Niwas, C.P. Tank, Mumbai
400004
...PLAINTIFF
VERSUS
M/s Ashok Fabs,
a firm, constitution whereof is known, doing
and carrying on its business at 78, Godown
Street, 3rd Floor, Chennai 600001.
…DEFENDANT
Shri V.D. Shukla i/b. M/s Shukla & Associates, Advocates for the
plaintiff.
Shri Arvind Taral, Advocate for defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
J U D G M E N T
(Delivered on 22/11/2022)
This is a suit for recovery of sum of Rs.3.95,415/ with
interest @ 21 % p.a. from the date of suit till realization of amount.
2. It is case of plaintiff that it is sole proprietorship concern
and Mr Popat Ramchandra Parekh HUF is sole proprietor. Mr Popat
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2 Comm. Suit 204/2019
Parekh is Karta and manager of HUF. Plaintiff is manufacturer, supplier
and distributor of terry towels and napkins and all types of bathrobes,
bed lines, bed sheets etc. Defendant is textile wholesaler, textile
retailers and fabric retailers operating business from Chennai. Plaintiff
is similar and defendant is buyer of the goods.
3. Defendant is in continuous need of terry towels for their
business. It approached the plaintiff for supplying the said goods.
Parties negotiated the quality, quantity and rate of goods and an
agreement to sell of goods was arrived between the antifollowing
terms:
a. Goods once sold will not be taken back.
b. Our responsibility ceases as soon as the goods leaves our
Godown.
c. Payment within due date otherwise 21% per annum
interest will be charged.
d. Subject to Mumbai jurisdiction.
4. Defendant from time to time placed various orders with
plaintiff to supply the goods. As per the requirement of defendant, the
plaintiff sold, supplied and delivered various goods through transport
Shri Anmol roadways Private Limited. Defendant accepted the goods
without any dispute and/or demur regarding the quality, quantity
and/or rate of goods. Alongwith the goods the plaintiff forwarded its
invoices for the value of goods sold, supplied and delivered to the
defendant and called upon to pay the same as per terms mentioned
therein. Defendant received the said invoices and paid the same from
time to time. The amounts where stood credited in the account of
defendant maintained by plaintiff in its ordinary and regular course of
business.
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5. As per the account maintained by plaintiff, the following
bills are due and payable by the defendant to plaintiff.
Date Invoice No. Due date Amount
30.11.2017 001599 30.11.2017 58,289
6.12.2017 001617 6.12.2017 1,66,238
16.12.2017 001648 16.12.2017 1,25,685
23.12.2017 001672 23.12.2017 1,15,668
27.12.2017 001689 27.12.2017 21,321
11.1.2018 001727 11.1.2018 42,090
15.1.2018 00174 15.1.2018 29,144
5.2.2018 001818 5.2.2018 24,849
8.2.2018 001842 8.2.2018 58,289
13.2.2018 001870 13.2.2018 29,144
26.2.2018 001926 26.2.2018 49,698
Total 7,20,415
6. Plaintiff confirmed the receipt of the following sum from
the defendant, a credit whereof is reflected in the account of
defendant :
Date Amount Date Amount
14.5.2018 50,000 28.5.2018 50,000
5.6.2018 50,000 26.6.2018 50,000
21.8 2018 50,000 27.9.2018 50,000
Total 3,00,000
7. Plaintiff adjusted the aforesaid amount against its invoice
No. 001599, 001617 and 001648. However, after adjusting the said
amount, sum of Rs. 50,212 remained outstanding against invoice
No.001648. As per the agreement, the defendant was to pay the value
of goods sold, supplied and delivered forthwith on receipt of invoice,
failing which the plaintiff is entitled for agreed rate of interest @21%
p.a. on outstanding sum.
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8. As no payment was forthcoming, the plaintiff closed
account of defendant and sent notice dated 27.10.2018 through
advocate to the defendant and called upon him to pay sum of
Rs.7,20,415/. Inadvertently there was mistake in the amount and thus
by a separate letter dated 27.10.2018 plaintiff clarified that the amount
to be read as Rs.4,20,415/and called upon him to pay the same
together with interest @ 21% p.a. The said notices were received by
defendant. On 13.12.2018, the plaintiff through its advocate issued
final demand notice and called upon the defendant to pay outstanding
sum of Rs.4,20,415/with interest @ 21% p.a.
9. On receipt of plaintiff’s notice, on 31.1.2019 the defendant
made a part payment of Rs.25,000/and promised to pay remaining
amount by February 2019. Plaintiff adjusted this part payment against
balance outstanding invoice No.001648 leaving behind some of
Rs.25,212/. Defendant did not pay the balance outstanding as
promised. As on the date of filing of suit, after adjusting all part
payments the defendant is liable to pay net sum of Rs.3,95,415/and
further interest @ 21% p.a. from the date of filing of suit till realization
of amount. Hence, the suit.
10. Defendant filed written statement at Exh.10 and contended
that defendant never agreed on terms mentioned in the invoice but the
plaintiff has printed the same unilaterally. Defendant denied that he
agreed to pay interest @ 21% p.a.. Initially, the quality of goods was as
per the orders placed by defendant during 2017 but thereafter quality
of the goods was not up to the mark and some goods were damaged
too. Defendant has brought the said fact to the notice of plaintiff
through his agent and also directly to the plaintiff, for which plaintiff
agreed to give credit.
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11. Defendant denied that there was a running account
between the parties. The statement given by plaintiff on the payment
received is not correct. According to defendant the goods were not
received by the defendant as the lorry receipts are not proper evidence.
Defendant had paid a sum of Rs.1,85,000/ on various dates to the
agent of plaintiff Mr. Naval resident of Kalbadevi but the credit of the
said amount has not been given by the plaintiff.
12. After adjusting the credit note and payments made to the
agent of the plaintiff, the amount due and payable to the plaintiff is
only Rs.78,000/. Defendant denied that he has made part payment of
31/1/2019. According to the defendant the suit is barred by limitation
and therefore only to overcome the limitation period the plaintiff has
mentioned the payment dtd.31/1/2019. In view of above pleading
defendant denied all other adverse contents of the plaint.
13. Considering pleading of both the parties, this court has
framed issues at Exh.12 and recorded findings thereon for the reasons
stated under.
ISSUES FINDINGS
1. Does plaintiff prove that he has sold,
supplied and delivered goods to defendant
as per invoices from 30/11/2017 to
26/02/2018 described in para no.5 (c) of
plaint ?
…Yes.
2. Does the plaintiff prove that a sum of
Rs.3,95,415/ is due and payable by
defendant to plaintiff towards the invoices
described in para no.5(i) of the plaint ?
…Yes
3. Whether plaintiff is entitled for interest on ...Yes.
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due amount @ 21% p.a.?
4. Whether plaintiff is entitled to relief
claimed ?
... Yes.
5. What order and decree? ...As per final
order.
REASONS
AS TO ISSUE No.1 & 2:
14. Heard learned counsel of plaintiff. Plaintiff has examined
its proprietor Mr. Popat Ramchandra Parekh (PW1) to prove his case.
He reproduced all content of plaint in his chiefexamination. He has
filed following documents.
Exh.14
(Colly.)
Invoice no. 001599 dt. 30/11/2017 for sum of
Rs.58,289/, Transport Receipt No. 349121 dt.
02/12/2017, Payment receipt issued by Professional
Couriers dt. 04/12/2017.
Ex.15 (colly) Invoice no. 001617 dt.06/12/2017 for sum of
Rs.1,66,238/, Transport Receipt No. 349602 dt.
06/12/2017, Payment receipt issued by Professional
Couriers dt.12/05/2017.
Ex.16 (colly) Invoice no. 001648 dt. 16/12/2017 for sum of
Rs.1,25,685/, Transport Receipt No. 351796
dt.18/12/2017 , Payment receipt issued by Professional
Couriers dt.20/12/2017.
Ex.17 (colly) Invoice no. 0016172 dt. 23/12/2017 for sum of
Rs.1,15,668/, Transport Receipt No. 353069 dt.
27/12/2017, Payment receipt issued by Professional
Couriers dt.29/12/2017.
Ex.18 (colly) Invoice no. 001689 dt. 27/12/2017 for sum of
Rs.21,321/, Transport Receipt No. 353427 dt.
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30/12/2017, Payment receipt issued by Professional
Couriers dt. 01/01/2018.
Ex.19 (colly) Invoice no. 001727 dt. 11/01/2018 for sum of
Rs.1,15,668/, Transport Receipt No. 355048
dt.12/01/2018.
Ex.20 (colly) Invoice no. 001746 dt. 15/01/2018 for sum of
Rs.29,144/, Transport Receipt No. 355391
dt.16/01/2018, Payment receipt issued by Professional
Couriers dt. 17/01/2018.
Ex.21 (colly) Invoice no. 001818 dt. 05/02/2018 for sum of
Rs.24,849/, Transport Receipt No. 358134
dt.07/02/2018, Payment receipt issued by Professional
Couriers dt. 09/02/2018.
Ex.22 (colly) Invoice no. 001842 dt. 08/02/2018 for sum of
Rs.58,289/, Transport Receipt No. 358419
dt.09/02/2018, Payment receipt issued by Professional
Couriers dt. 12/02/2018.
Ex.23 (colly) Invoice no. 001870 dt. 13/10/2018 for sum of
Rs.29,144/, Transport Receipt No. 359089
dt.15/02/2018, Payment receipt issued by Professional
Couriers dt.
Ex.24 (colly) Invoice no. 001926 dt. 26/02/2018 for sum of
Rs.49,698/, Transport Receipt No. 360521 dt.
28/02/2018, Payment receipt issued by Professional
Couriers dt.03/03/2018.
Ex.25 Account statement for months of April 2018 to
September 2018 and January 2019.
Ex.26 Legal notice dt. 27/10/2018.
Ex.27 Legal notice dt. 27/10/2018 along with postal receipt.
Ex.28 Legal notice dt. 13/12/2018 along with postal receipt
and acknowledgement slip.
Ex.29 Deft Statement of account maintained by plff.
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15. Plaintiff come with a case that he has sold, supplied and
delivered goods worth of Rs.7,20,415/ to defendants in year 2017 and
2018 as per invoices mentioned in para supra. Defendant has paid part
payment of Rs.3,00,000/ + Rs.25,000/. Thus, the outstanding dues
are Rs.3,95,415/. Defendant admitted that plaintiff has sold, supplied
and delivered goods as per aforesaid invoices however, he come with a
defence that the goods were not upto the quality and some goods were
damaged too. According to the defendant the payable and due amount
is Rs.78,000/.
16. The defendant first time raised the defence of defective and
damaged goods at the time of filing written statement in this suit.
Previously he has not raised any such objection about the damaged and
defective goods. He has accepted the delivery of goods and has not
returned the goods. Thus, inference is drawn that the goods were upto
the mark and therefore, defendant has accepted the delivery of goods
and has not returned the same. If the goods were defective or damaged,
certainly defendant would returned the same or made any
communication about the same with plaintiff. However, there is no such
action on the part of defendant. Plaintiff has issued notice to defendant
on 27/10/2018, 13/12/2018. The said notice was served upon
defendant as per the RPAD acknowledgement. In the said notice
plaintiff has requested defendant to pay the aforesaid outstanding dues
amount of Rs.4,20,415/. Defendant has not given reply to the said
notice but after receipt of the said notice he has paid part payment of
Rs.25,000/. At that time defendant could give reply and raised the
objection of defective/damaged goods but he has not made any such
grievance. Defendant has not entered in witness box to rebut the
evidence of plaintiff/PW1. Evidence of plaintiff is supported by
aforesaid documentary evidence. Thus, the defence of defendant that
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the goods were not upto the mark and were damaged is not probable.
17. Evidence of plaintiff /PW1 is supported by tax invoices,
lorry receipts, Bank statement, notices and ledger account. The amount
mentioned in the tax invoices reflected in the ledger account
maintained by the plaintiff. In view of above discussed evidence,
plaintiff succeed to prove that he has sold, supplied and delivered goods
to defendant as per invoices from 30/11/2017 to 26/02/2018.
18. According to defendant only Rs.78,000/ is due. Plaintiff
produced bank statement and ledger account maintained by him. The
entries mentioned therein indicate that defendant has paid
Rs.3,25,000/ out of total outstanding of Rs.7,20,415/. Defendant has
not adduced any evidence to show that he has paid total amount of
Rs.6,42,415/ and there is only remaining outstanding of Rs.78,000/.
At the cost of repetition it is mentioned here that defendant has not
raised any such defence after receipt of demand notices issued by
plaintiff prior to filing of the suit. Thus, considering the entire evidence
discussed above plaintiff succeed to prove that a sum of Rs.3,95,415/ is
due and payable by defendant towards the invoices. Hence, I answered
issue Nos.1 and 2 in affirmative.
AS TO ISSUE No.3 :
19. Plaintiff claimed interest @ 21% p.a. on the due amount of
Rs.3,95,415/. The term and condition regarding the rate of interest
mentioned on the invoices in the words “Payment within due date
otherwise 21% p.a. will be charged”. As contended in para supra the
plaintiff has proved those invoices. As per the findings on aforesaid
issues, defendant is in outstanding of Rs.3,95,415/. Defendant has not
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paid the said amount within due date. Therefore, as per the terms
mentioned in invoice the defendant is liable to pay interest @ 21% p.a.
which is agreed rate of interest. Moreover, the nature of transaction is
of commercial nature and therefore, considering the prevailing market
rate in commercial transaction plaintiff is entitled to interest @ 21%
p.a. from the date of suit till realisation of the amount. Hence, I
answered issue No.3 in affirmative.
AS TO ISSUE No.4:
20. This issue is pertaining to entitlement of plaintiff to the
relief claimed. According to defendant suit is barred by limitation but to
bring the suit within limitation the plaintiff has falsely mentioned that
defendant has lastly paid part outstanding on 31/3/2019. On this
aspect plaintiff relied on the evidence of PW1 which is supported by
the bank statement issued by Kotak Mahindra Bank, Kalbadevi Mumbai
Branch, Mumbai (Exh.25). It shows that the said account is in the name
of plaintiff in Kotal Mahindtra Bank. The bank statement is for a period
3.4.2018 to 31.1.2019. The entry dtd.31/1/2019 mentioned in the said
statement makes it clear that plaintiff has received Rs.25,000/ from
defendant through NEFT. The bank authority has no reason to take
false entries. There is no reason to disbelieve the entry taken in bank
account. The said entry is taken in the course of day to day business.
Defendant failed to rebut the said evidence. Therefore, it cannot be said
that suit is barred by the limitation. The last payment made by
defendant on 31/1/2019 and this suit is filed on 27/9/2019 and hence,
the suit is within limitation. In view of above entire facts and
circumstances, the plaintiff is entitled for the relief claimed, hence, I
answered issue No.4 accordingly and I pass the following order.
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ORDER
1. Suit is decreed with costs as under.
2. Defendant is directed to pay to plaintiff a sum of
Rs.3,95,415/ with interest @ 21% p.a. from the date of
suit till realization of the amount.
3. Decree be drawn up accordingly.
Date : 22/11/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 22/11/2022.
Checked on : 22/11/2022.
Signed on : 22/11/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22/11/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 22/11/2022.
Order signed by P.O. on 22/11/2022.
Order uploaded on 22/11/2022.
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