Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum. Suit No.1045/2019 -: 1 :- Judgement
MHCC010100932019
Presented on : 03102019
Registered on : 22102022
Decided on : 22.03.2024
Duration : YY:MM:DD
04: 05: 19
IN THE BOMBAY CITY CIVIL COURT, MAZGAON AT BOMBAY
SUMMARY CIVIL SUIT NO. 1045 OF 2019
EXHIBIT NO.11
Joitaram Hiraji Patel
son of Hiraji L. Patel aged about 41 years,
Occupation: Business, carrying on business
name and style of “Montex metals India” at
99100, Pansare Building, 4 th Kumbharwada,
Mumbai – 400 004. ... Plaintiff.
V/s
1) M/s. Bilehari Hi Tech
A Firm owned by the defendant Nos.2 and 3.
2) Ravishankar Muralilal Soni
Full name not known, adult, age: not
known, Occupation: business.
3) K. M. Soni
Full name not known, adult, age: not
known, Occupation: business.
All the defendants commonly at C/o. M/s.
Bilehari Hi Tech at Plot No.5 Eknath Patil
Compound, Opp P. J. Mhatre High School,
Navadephata, MIDC, Taloja, Navi Mumbai
410 208. ... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(INCHARGE OF COURT ROOM NO.83)
DATE : 22nd DAY OF MARCH 2024
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Sum. Suit No.1045/2019 -: 2 :- Judgement
: Appearances:
The Learned Adv. Tripathi for the plaintiff.
Defendants' Exparte.
JUDGMENT
The plaintiff has filed the present Summary suit for recovery of
sum of Rs.1,37,331.36/ and further interest on the principal sum of
Rs.1,08,058/ @ of 18% per annum from the date of filing of the suit
till its full realization.
2. Briefly stated facts of the case are as under:
The plaintiff is carrying on business under Firm name and style
of “Montex Metal (India)”. The plaintiff is engaged in the business as
stockiest and dealer in Stainless Steel Pipe/Plate/Round etc., material
and also all ferrous and nonferrous metals.
3. The defendant no.1 is a firm, which is jointly owned by
defendant nos. 2 and 3. They are looking after and managing day to day
business activity and affairs of defendant no.1 firm. Defendants are
engaged in the business of manufacturer of Chemical plant equipment’s,
reactor vessel etc.
4. As per verbal orders received by defendants, the plaintiff from
03.03.2017 to 06.04.2018 sold, dispatched and delivered S. S. Patta/
Rod/ Feetings/ Pipe/ Sheet, M. S. Pipe/Rod/Plate/ Flat/ Coil material
to the defendants for the total sum of Rs.3,08,058/ vide different nine
tax invoices against 30 days credit payment basis. Defendants from
24.10.2017 to 30.07.2018 made part payments of Rs 2 Lakhs to the
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Sum. Suit No.1045/2019 -: 3 :- Judgement
plaintiff leaving behind total principal balance sum of Rs. 1,08,058/.
Thereafter, the plaintiff repeatedly requested to the defendants to clear
the outstanding amount with interest, but of no use. Therefore, the
plaintiff had issued notice dated 14.12.2018 upon the defendants,
thereby called upon them to clear outstanding dues with interest.
Defendants failed to reply said notice. Therefore, plaintiff again issued
notice dated 16.01.2019 for demanding outstanding amount.
Defendants vide reply dated 05.02.2019 have admitted and confirmed
the plaintiff lawful dues, but failed to clear the outstanding amount.
Hence, the suit.
5. In spite service, the defendants failed to appear, hence, suit
proceeded Exparte against defendants vide order dated 03.03.2022.
6. The plaintiff has filed claim affidavit at Exh.3. The plaintiff relied
on the documents filed alongwith list Exh.4.
7. Heard the Ld. Advocate for the plaintiff. Perused the record.
8. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of principal amount of
Rs.1,37,331.36/ and further interest
on the principal sum of Rs.1,08,058/
@ of 18% per annum from the date of
filing of the suit till its full realization
as claimed?
Partly Yes
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Sum. Suit No.1045/2019 -: 4 :- Judgement
2. What Order and Decree? As per final
order.
REASONS
As to Point No.1:
9. The plaintiff has filed affidavit of claim and stated as per the
contents of the plaint averments; hence I do not want to reproduce the
same to avoid the repetition.
10. The Ld. Advocate for the plaintiff argued that the plaintiff had
sold, supplied and delivered goods worth Rs. 3,08,058/ to the
defendants from time to time during the period 03.03.2017 to
06.04.2018. To substantiate same the plaintiff has filed copy of Nine
invoices and delivery challans (Exh.5 Colly), as well as, Ledger account
from the period from 01.04.2016 till 13.09.2019 (Exh.6 colly). It is
further argued that out of said amount, defendants have paid only 2
Lakhs leaving behind amount of Rs. 1,08,058/ due and payable by
defendants to the plaintiff. Despite of verbal and written
communications, defendants though admitted liability failed to clear
outstanding due. To substantiate same, the Ld. Advocate for plaintiff
has filed Copy of Legal Demand Notice, Reply of Defendants and
Reminders Letter (Exh.7 Colly to Exh.10 Colly). Upon perusal of reply
dated 05.02.2019 sent by defendants, it reveals that they have admitted
that there is due of Rs.1,08,058/ of plaintiff upon them, however, they
denied interest @ 24 % per annum.
11. Herein it is to be noted that despite of receiving writ of
summons, defendants failed to enter their appearance, hence, my Ld.
PredecessorinCourt proceeded Exparte against them. In view of Order
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Sum. Suit No.1045/2019 -: 5 :- Judgement
XXXVII Rule 2 (3) of the Code of Civil Procedure, if the defendant failed
to enter his appearance, then, the allegations in the plaint shall be
deemed to admitted and the plaintiff shall be entitled to a decree for
any sum, not exceeding the sum mentioned in the summons, together
with interest at the rate specified. The suit is well within limitation.
Thus, considering pleading and evidence, the plaintiff duly proved that
he is entitled to recover principal amount of Rs. 1,08,058/ from the
defendants. So far as, rate of interest is concerned, looking to the
present bank rate and the nature of transactions, I am of the view that if
defendants are directed to repay the same @ 9% per annum from the
date of its due till full realization, then it will subserve the purpose.
Hence, my answer to point no.1 is partly affirmative.
AS to Point No.2.
12. In view of my above discussion, I pass the following order;
ORDER
1. Summary Suit No.1045 of 2019 is partly Decreed with Cost.
2. The defendants do pay principal amount of Rs.1,08,058/ with
interest at the rate 9% per annum from the due date till its full
realization.
3. Decree be drawn up accordingly.
4. Summary Suit No.1045 of 2019 disposed of.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:22.03.2024 Mazgaon, Gr. Mumbai
(Incharge of C. R. No.83.)
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Sum. Suit No.1045/2019 -: 6 :- Judgement
Dictated on : 22.03.2024
Transcribed on : 22.03.2024
Signed on : 22.02.2024
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Sum. Suit No.1045/2019 -: 7 :- Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 26.03.2024 NAME OF STENOGRAPHER
TIME: 05.44 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. Virendra D. Kedar
(InCharge of Court Room No.83)
Date of Pronouncement of
JUDGEMENT/ORDER
22.03.2024
JUDGMENT/ORDER signed by
P.O. on
22.03.2024
JUDGEMENT/ORDER uploaded on 26.03.2024
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