Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010100942019
Filed on :03.10.2019
Registered On :22.10.2019
Decided on :20.01.2022
Duration : Y-02/M-03/D-19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 1030 OF 2019
CNR NO.- MHCC01-010094-2019
Exhibit- 08
Jyotiram Hiraj Patel
son of Hiraji L Patel, aged about 41 years,
Occupation: Business, carrying on business
under name and style of “ Montex Metals” at
99/100 Pansare Building, 4th Kumbharwada,
Mumbai- 400 004.(Maharashtra )
Mobile No. 09869536183
Telephone No. (022) 66394022
Email: montexmetals@gmail.com ... Plaintiff
V/s.
1. M/s. Pratik Engineering
A firm owned by the defendants Nos.2 and 3
2. Ravishankar Muralilal Soni
Full name: not known, adult, age:
Not known, Occupation :business
3. K.M. Joshi
Full name: not known, adult, age:
Not known, Occupation :business
All the Defendants commonly situated at C/o
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at M/s.Pratik Engineering at Plot Ns. 7,8 and
9, Navadephata, Thane Pune Road, Behind
Nathalal Gas MIDC, Taloja, Navi Mumbai- 410
208.
Mobile No. 9323859454 , 9221463679.
Email address:
pratikegineeringmumbai@gmail.com
... Defendants
Appearance:-
Advocate K.S. Tripathi for the plaintiff.
Exparte against Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 20/01/2022
JUDGMENT
(Dictated and pronounced in Open Court.)
1. This is a summary suit instituted by the plaintiff under
order XXXVII of Code of Civil Procedure 1908 against the defendants.
2. The suit claim of the plaintiff is narrated in nutshell as
under:
The Plaintiff is carrying on business under firm name and style of
“ Montex Metals(India)” and engaged in the business of stockist and
dealer in stand-less steel Pipe/ Plate/Round etc. The defendant no.1 is
a firm which is jointly owned by the defendant nos.2 and 3 respectively.
The defendants are engaged in the business of Chemical Plants
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Equipments, Reaction vessels, S.S. Limpet Coil, Reactors etc. The
plaintiff in his regular course of business pursuant to the defendants
verbal orders received by the plaintiff at plaintiff’s business place from
dtd. 6.7.2016 to dtd.29.5.2017 sold, dispatched and delivered S.S.
Patta/Rod/Circle /Plate/Sheet/Bolt materials to the defendants for the
total sum of Rs.5,53,628/- vide 22 tax invoices described in the suit
plaint against 30 days credit payment basis. The defendants willfully
failed to make the payment in time though continuously requested by
the plaintiff. The part payment of Rs.3,35,858/- is made in between
16.7.2016 to 28.2.2017. The amount of Rs.2,17,770/- is the
outstanding amount remained to be paid by the defendants alongwith
accrued interest at the rate of 18% p.a on delayed payment. The
defendants are jointly and severally are liable to pay said amount to the
plaintiff. But failed to pay the same. Hence, the advocates letter dtd.
14.12.2018 was sent to the defendants. However, even after receipt of
letter they avoided to comply with the requisition thereof. The plaintiff
averred that the defendants are liable to pay the outstanding amount
with interest.
3. Thus, the plaintiff has filed the present suit against the
defendants for recovery. It is averred that the defendants are jointly and
severally liable to pay a sum of Rs.2,99,999/- with interest on the
principal amount of Rs.2,17,770/- at the rate of 18% p.a to the plaintiff
from the date of suit till its realization. The suit claim is restricted by the
plaintiff for the amount of Rs.2,99,999/-. Hence, this suit.
4. The suit summons were duly served on the defendants but
they failed to appear. Hence, suit is posted for judgment as per order
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XXXVII Rule 2(3) of Code of Civil Procedure 1908 judgment.
5. The following points arise for my determination and my
findings thereon are as under for the reasons stated there under:-
Sr.
No.
POINTS FINDINGS.
1. Whether the plaintiff is entitled for
recovery of amount against the
defendants ?
A] If yes, what would be the rate
of interest?
Amount of
Rs.2,99,999/- with
interest
@ 18% per annum
on the principal sum.
2. What order and decree? As per final order.
REASONS
6. In order to establish the suit claim, the plaintiff has filed
following documentary evidence below Exh.07 i.e the list of
documents:
Sr.
No.
Description of documents Exhibits
1 Tax Invoices and Delivery Challans
alongwith Transporter's cash
memos
Exh.7/1(colly)
2 Ledger accounts for the period
from 01.04.2016 to 13.09.2019
Exh. 7/2(colly)
3 Plaintiff's advocate's legal demand
notice dated 14.12.18 and 3
original registered post receipts.
Exh. 7/3
4 Plaintiff's advocate's notice dated
16.01.2019 alongwith 3 original
registered post receipts and 3
original registered post
acknowledgment cards.
Exh. 7/4
5 Defendant's advocate's reply letter
dated 05.02.19 alongwith the
original registered post letter
Exh. 7/5
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Sr.
No.
Description of documents Exhibits
envelope.
6 Reminder letter dated 26.04.2019
alongwith 3 original registered
post receipts and 3 original
registered post acknowledgment
cards.
Exh. 7/6
AS TO POINT NO.1:
7. This is a summary suit which is not contested by the
defendants. The plaintiff has produced various documents on record.
Further, he has filed affidavit below Exh.05 regarding service of writ of
summons to the defendants. Claim affidavit filed below Exh.06. The
documents produced on record by the plaintiff shows that the
defendants received the goods covered with the tax invoices below
Exh.07. The part payment of Rs.3,35,858/- is also made. The
documents shows that the defendants received legal notice issued by
the plaintiff and replied the same. In reply the said notice on
dtd.5.2.2019 the defendants have admitted their liability to pay the
outstanding amount. But disputed the rate of interest. Said notice
replay is at Exh.07(5). However, the tax invoices are sufficient to show
that the agreed rate of interest is 24% p.a on delayed payment. In the
present suit plaintiff has claimed interest at the rate of 18% p.a .
Further, it reveals from the record that the said transaction took place
from dtd. 6.7.2016 to 29.5.2017 and the notice/letter of demand was
issued to the defendants on dtd.14.12.2018 and the suit is filed on
3.10.2019. As such, the plaintiff’s claim in the suit is well within
limitation.
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8. All the documents produced by the plaintiff at list Exhibit-
07 goes to establish that plaintiff has supplied goods to the defendants
as per their instructions and the defendants failed to repay the balance
amount of Rs.2,17,770/-, though received the letter of demand from the
plaintiff. Said amount is not repaid by the defendants. Therefore
defendants are jointly and severally liable to pay the outstanding
amount of Rs.2,17,770/- with interest to the plaintiff. According to the
plaintiff the amount of Rs.2,99,999/- is calculated by them as the
outstanding amount by adding the interest at the rate of 18% p.a. In
this background, I have arrived at the conclusion that the plaintiff is
entitled to recover sum of Rs.2,99,999/- from the defendants.
9. According to the plaintiff the outstanding dues against the
defendants is Rs.2,99,999/- and said amount is calculated alongwith
interest at the rate of 18% p.a till the date of filing of the suit. So the
total outstanding amount is Rs.2,99,999/-. Apart from said amount
which is due against the defendants on the date of filing of the suit, the
plaintiff has claimed interest at the rate of 18% per annum on the
principal amount. As per section 34 of the Code of Civil Procedure the
rate of interest may exceed 6% per annum, if the transaction is
commercial. In the present case the transaction is a commercial one
and there is contract existing between the parties as to the rate of
interest which shall be levied. As per the agreed terms mentioned on
the invoice below Exh.07, defendants are liable to pay the interest at
the rate of 24% p.a. However, the plaintiff have restricted the claim for
principal amount of Rs.2,99,999/- and interest at the rate of 18% only.
Therefore, I hold, the rate of interest at the rate of 18% per annum
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would be just and proper to be awarded on the principal sum adjudged
i.e. amount of Rs.2,17,770/-. Hence, point no.1 is answer in the
affirmative.
AS TO POINT NO.2:
10. In view of discussion and finding on point no.1, it is held
that the plaintiff is entitled to recover Rs.2,99,999/- from the
defendants with interest at the rate of 18% per annum on the principal
sum of Rs.2,17,770/- from the date of filing of the suit till its
realization. Plaintiff is also entitled to recover cost of the suit from the
defendants. Hence, in answer to point no.2, I proceed to pass the
following order:
ORDER
1. The defendants shall pay Rs.2,99,999/- (Rs. Two
Lakhs Ninety Thousand Nine Hundred Ninety Nine
only) to the plaintiff, with interest at the rate of 18%
per annum on the principal sum of Rs. 2,17,770/-
from the date of filing of the suit till its realization.
2. The defendants do pay costs of the suit to the plaintiff.
3. Court fee, if any, be refunded as per the rules.
4. Decree be drawn accordingly.
(A.H. Kashikar)
AD-HOC Judge,
City Civil Court,
Date :20/01/2022 Gr. Bombay
Dictated on : 20/01/2022
Typed on : 20.1.2022
Signed on : 20.1.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/01/2022 02.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
20/01/2022
JUDGMENT/ORDER signed by
P.O.on
20/01/2022
JUDGMENT/ORDER uploaded on 20/01/2022
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