Final Order 1

Order Details: Ex-parte Judgement
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MHCC010100842019
Presented on : 01102019
Registered on : 26112019
Decided on : 31082021
Duration : Y01 M11 D0
IN THE CITY CIVIL COURT AT GREATER BOMBAY
COMMERCIAL SUIT NO.221 OF 2019
Mr.Dhirajlal Bhojraj Gada, ]
Proprietor of M/s. Shah Bhojraj Hirji ]
Through its Power of Attorney Mr. Dinesh Gala ]
Having office at Shop No.8, Sapna CHS Ltd. LBS ]
Marg, Ghatkopar (West), Mumbai 400 086 ]......Plaintiff
V/s
Mr. Anil Gupta
Proprietor of M/s. Sushil Construction, ]
B/50, Station Plaza, Ground Floor, ]
Bhandup (West), Mumbai. ]......Defendant
APPEARANCE :
Ld. Adv.Yusuf Furniturewala for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR ADHOCADDL.SESSIONS
JUDGE SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 31st August, 2021.
EXPARTE JUDGMENT
(Dictated in Open Court)
This suit is filed under the Commercial Courts Act,
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2015 for recovery of amount of cost of material supplied to the
defendant.
In brief, the facts of the plaintiff's case are as under :
2. The plaintiff is carrying business of dealer in building
materials like oil paint, distemper and other goods. The defendant
had approached the plaintiff for supply of painting material.
Accordingly, the plaintiff had supplied various painting materials
to the defendant and raised tax invoices against the same. As per
the defendant’s orders, the manufacturing company has delivered
painting materials at the site address of the defendant. For the part
payment against the amount due, the defendant have issued two
cheques bearing No.1057 and 1058 to the plaintiff. On depositing
the said cheques for encashment, they were dishonoured.
Thereafter, the plaintiff had issued demand notice to the defendant
on 07.04.2018. In his reply dt. 20.04.2018, the defendant admitted
the liability. The defendant is liable to pay sum of Rs.3,58,567/
alongwith interest at the rate of 18% p.a. With these contentions,
the plaintiff has prayed for decree against the defendant, directing
him to pay to the plaintiff the sum of Rs.3,58,567/ alongwith
interest at the rate of 18% p.a.
3. The defendant has failed to file the written statement,
hence suit is proceeded without written statement.
4. Heard the learned Advocate for the plaintiff. No
argument of the defendant. Points for determination along with
my findings thereon with reasons are as follows:
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POINTS FINDINGS
1. Whether the plaintiff proves that amount of
Rs.3,58,567/ is due and payable from the
defendant to the plaintiff against the cost of
material sold and delivered by the plaintiff
to the defendant ?
Yes
2. If yes, whether the plaintiff is entitled to
recover the said amount from the
defendant?
Yes
3. If yes, at what rate of interest? 11% p.a
4. What order and decree? Suit is decreed
REASONS
AS TO POINTS NO.1 TO 3:
5. The plaintiff has examined Mr. Dhirajlal(PW No.1) at
Exh.02. He deposes that he is carrying business of building
materials like oil paint, distemper and other goods. The defendant
had approached to him for supply of painting materials. He further
deposes that on demand of the defendant, he supplied painting
materials to the defendant. Accordingly, tax invoices were raised
against the defendant. The defendant failed to pay amount of the
materials purchased by him. He further deposes that the cheques
issued by the defendant for part payment have been dishonoured.
The plaintiff issued notice to the defendant on 07.04.2018. In the
reply to said notice, the defendant has admitted the liability, but
has failed to pay the amount. The reply (Exh.31) dated
20.04.2018 is the reply of the defendant to the plaintiff's demand
notice. In the said notice reply, it is stated that on delivery of
goods, the defendant had issued cheques as security deposit. In
this notice reply it is the contention of the defendant that the
payments are to be released once the payments are made for the
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work order against which the goods have been taken. By such
contentions the defendant has admitted that he has purchased the
material from the plaintiff. In the said notice reply, there is also
contention that the defendant is constantly in communication with
the plaintiff and was awaiting amount to be released by the society
against whose work order the goods were taken by him from the
plaintiff. These contentions also makes it clear that the defendant
has purchased goods from the plaintiff and same were delivered to
him.
6. The documentary evidence as to invoices at Exh.4 to
12 show that various painting materials have been purchased by
the defendant from the plaintiff. Delivery challens from Exh.13 to
24 shows that these goods are delivered at the address of the Co
corporative Society where the work of the defendant was going on.
Dishonoured cheques at Exh.25 shows that the defendant has
issued these cheques against part payment of the amount due.
Considering these documentary evidence, it is clear that the
defendant has purchased goods from the plaintiff, but has failed to
make the payment against the same to the plaintiff. The defendant
has not appeared in the suit to contest the plaintiff's claim. He has
not disputed the facts stated by the plaintiff. Oral as well as
documentary evidence on record supports the plaintiff's case.
Therefore, the plaintiff proves that the defendant has failed to pay
the amount of Rs.3,58,567/ to the plaintiff against the materials
purchased from the plaintiff. Hence, the plaintiff has proved that
the defendant is liable to pay the said amount to the plaintiff.
7. There is no agreed rate of interest, hence the
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commercial rate of interest i.e. at the rate of 11% p.a. is required
to be considered for the plaintiff's claim. The plaintiff proves that
amount of Rs.3,58,567/ is due and payable from the defendant to
the plaintiff against the cost of material sold and delivered by the
plaintiff to the defendant. Hence, the plaintiff is entitled to recover
the amount of Rs.3,58,567/ with interest at the rate of 11% p.a.
from the defendant from the date of filing of the suit till realization
of the amount. In the result, I answer points No.1 to 3 accordingly.
AS TO POINT NO.4:
8. In view of my findings to point Nos.1 to 3, the suit is
liable to be decreed with costs. In the result, in answer to point
No.4, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant do pay to the plaintiff an amount of
Rs.3,58,567/ (Rupees Three Lacs Fifty Eight
Thousand Five Hundred and Sixty Seven Only)
together with interest at the rate of 11% per annum
from the date of filing of suit till its realisation.
3. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :31.08.2021 Mumbai.
Dictated on : 31.08.2021
Transcribed on : 01.09.2021
Signed by HHJ on : 02.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.09.2021 at 3.25 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
31.08.2021
Judgment/order signed by P.O. on 02.09.2021
Judgment/order uploaded on 04.09.2021
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