Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010103382019
Presented on : 07102019
Registered on : 08112019
Decided on : 15032021
Duration : Y01, M05, D08
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO.186 OF 2019
Designer Fabrics (I) Pvt. Ltd., ]
A Private Limited Company ]
carrying on business at 301, ]
Shree Sai Vaibhav Co.op. Hsg. Soc. Ltd., ]
R.B. Mehta Marg, Ghatkopar (E), ]
Mumbai400 077 Through Director Rajendra ]
Arvind Parpani, Aged 54 years ]....Plaintiff
V/s
1. Indu Fab, ]
carrying on business at 43/44 ]
2nd floor, Sawan Guru Plaza (Annex), ]
D.K. Lane, Chickpet Cross, ]
Bangalore 560 053 ]
2. Satyanarayan Goyal, Age not known ]
An Adult Indian Inhabitant residing at 802/9 ]
15,'C' Cross, Gokula, 1st Stage, 1st Phase, Mathi]
Care, Bangalore560 054 ]...Defendants
APPEARANCE:
Ld. Adv. Mr. Mahesh J. Devani for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 15th March, 2021.
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Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree against
defendants, directing the defendants to pay to the plaintiff a sum of
Rs.9,48,007/(Rupees Nine Lakhs Forty Eight Thousand and Seven
Only) with further interest on principal sum of Rs.4,15,288/(Rupees
Four Lakhs Fifteen Thousand Two Hundred Eighty Eight only) at the
rate of 24% per annum from the date of filing of suit till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The plaintiff in pursuance to the order placed by the
defendants had sold, supplied and delivered the goods to the
defendants under various invoices and for the part payments received,
the plaintiff have given credit to the defendants for the same. However,
there is sum of Rs.7,04,649/(Rupees Seven Lakhs Four Thousand Six
Hundred Forty Nine Only) remains due towards the defendants on
15.02.2018.
It is the case of the plaintiff that the plaintiff had submitted
various invoices to the defendants for making the payments. The
invoices were accepted by the defendants and part payments were
made by defendants to the plaintiff. The goods sent were accepted by
the defendants and had not raised any dispute regarding the quality,
quantity and the price of the goods. It is the case of the plaintiff that
two cheques bearing No.978613 dated 23.09.2015 for Rs.1,49,489/
and cheque No.978614 dated 28.09.2015 for Rs.2,03,338/ were
dishonoured.
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3. The plaintiff had initiated proceedings under Section 138 of
the Negotiable Instruments Act,1882 against the defendants. It is stated
that defendant No.2 had telephonically requested to the plaintiff for
settlement. In the meeting, the liability was admitted and the
defendant No.2 promised to the plaintiff about the remaining amount
with interest at the rate of 24% p.a. It is stated that last payment was
made by the defendants to the plaintiff on 25.04.2017. It is stated that
defendants had admitted their liability towards the plaintiff vide
Advocate's letter dated 02.07.2016. The notice was issued by the
plaintiff to the defendants on 13.04.2018. The same was received by
defendant No.1. The defendant No.2 was refused to accept it. The
plaintiff through it's Advocate again had addressed letter dated
24.06.2018 to defendants, called upon the defendant to make payment.
The defendant had not made the payment.
The plaintiff, therefore, had instituted the present suit for
recovery of amount of Rs.9,48,007/ with further interest on principal
amount of Rs.4,15,288/ at the rate of 24% per annum from the date of
filing of suit till its realization.
4. The defendants had not appeared in the suit. The suit
therefore proceeded exparte against defendants.
5. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery amount of Rs.9,48,007/
(Rupees Nine Lakhs Forty Eight
Thousand and Seven Only) with further
'In Affirmative'
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interest on principal amount of
Rs.4,15,288/(Rupees Four Lakhs Fifteen
Thousand Two Hundred Eighty Eight
only) at the rate of 24% per annum from
the date of filing of suit till its
realization?
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
6. Heard learned Advocate Mr. Mahesh J. Devani for the
plaintiff.
7. The plaintiff in support of its case had examined Rajendra
Arvind Parpani at Exh.03. He had reiterated all the contentions
levelled against defendant in the plaint. The plaintiff had relied upon
following documents (Exh.04):
Sr.
No.
Particulars Exh.
1 Resolution dated 11.02.2016, duly passed by the
Board of Directors of the plaintiffs.
5
2 Extract of Account of the defendants as per the
Books of Accounts of the plaintiffs
6
3 Copy Invoice No.SH011359/1516 dated
06.07.2015 of the plaintiffs raised in the name of
the defendants.
7 colly
4 Xerox copy of lorry receipt No.0045351 dated
06.07.2015 of New Wester Carrier.
8
5 Dishonoured Cheque No.978613 dated
23.09.2015 for Rs.1,49,489/ issued by the
defendants in favour of the plaintiffs.
9
Memo of dishonour of the Bank dated
19.12.2015.
10
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Dishonoured cheque No.978614 dated
28.09.2015 for Rs.2,03,338/ issued by the
defendants in favour of the plaintiffs
11
Memo of dishonour of the Bank dated
28.12.2015
12
6 Copy of the plaintiff's Advocates letter dated
14.01.2016 addressed to the defendant No.2 with
acknowledgement.
13 colly
Copy of the plaintiff's Advocates letter dated
18.01.2016 addressed to the defendant No.2 with
acknowledgement.
14 colly
7 Letter dated 02.07.2016 of the defendants
addressed to the Advocate for the plaintiff.
15
8 Copy of the plaintiffs Advocates letter dated
13.04.2018 addressed to the defendants with
acknowledgement and returned packet.
16 colly
Copy of the plaintiffs Advocates letter dated
24.06.2018 addressed to the defendants with two
acknowledgements.
17 colly
8. The evidence of the plaintiff shows that the plaintiff had
sold, supplied and delivered the goods to the defendants from time to
time. The defendants are in arrears of Rs.7,04,649/ as on 15.02.2018
in the books of accounts of the plaintiff. It is the evidence of the
witness for the plaintiff that invoices were issued and diverse payments
made by the defendants to the plaintiff. The defendant had not raised
any dispute regarding quantity, quantity and price of the goods.
9. It appears from the evidence of the plaintiff that transaction
of the plaintiff with the defendants were from the year 20152016. The
two cheques bearing No.978613 dated 23.09.2015 for Rs.1,49,489/
and cheque No.978614 dated 28.09.2015 for Rs.2,03,338/ in the
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month of September were dishonored. The proceedings are initiated by
the plaintiff under Section 138 of the Negotiable Instruments Act, 1882
against defendants.
It is stated that in the meeting, the defendant No.2 had
admitted his liability and admitted to pay the arrears at the rate of 24%
p.a. It is the evidence of the plaintiff that last payment was made by
defendants on 25.04.2017. The notices issued by the plaintiff were not
replied by the defendant. The plaintiff, therefore, had instituted the
present suit for recovery of amount of Rs.9,48,007/ with further
interest on principal amount of Rs.4,15,288/ at the rate of 24% per
annum from the date of filing of suit till its realization.
10. It needs to be noted that the present suit is instituted on
07.10.2019. The invoices mentioned in the plaint are for the year 2015.
The transaction appears to be for the year 2015. The two cheques
issued in the year 2015. It is also the evidence of the plaintiff that the
plaintiff has initiated proceeding under Section 138 of the Negotiable
Instruments Act,1882. It is the evidence of the plaintiff that in the
meeting the defendants have admitted their liability and agreed to
repay the amount at the rate of 24% p.a. It needs to be mentioned that
the date of meeting is not mentioned in writing to that effect which is
produced in his evidence.
It is the evidence of the plaintiff that last payment was
made on 25.04.2017. It is also the evidence of the plaintiff that the
Advocate for the defendant had acknowledged the liability by its letter
dated 02.07.2016 (Exh.15).
It is the evidence of the plaintiff that last payment was
made by the defendants on 25.04.2017. The interest statement (Exh.6)
shows the extract of account of the defendants, it also shows that last
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payment was received by the plaintiff on 25.04.2017. The invoices
show that the interest at the rate of 24% p.a. would be charged after the
due date. The evidence of the plaintiff shows that vide Exh.15 the
defendant had acknowledged that amount of Rs.14,47,849/ was due
towards the defendant and undertook to clear the said amount. The
plaintiff had issued notice dated 13.04.2018. The statement of accounts
was also annexed with the notice. The plaintiff had also issued letter
dated 24.6.2018 to the defendants. The letters were received by the
defendants. It is the evidence of the plaintiff that last payment was
made on 25.04.2017.
The defendant had not appeared in the suit and had not
contested the suit. It therefore had to be inferred that the defendants
has no case to contest the suit. The contentions raised by the plaintiff
have gone unchallenged. The plaintiff is entitled for recovery of amount
Rs.9,48,007/. The plaintiff is further entitled for interest on principal
amount of Rs.4,15,288/ at the rate of 24% per annum from the date of
filing of suit till its realization. Hence, I answered point No. 1 “in
Affirmative.” In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The defendants are directed to pay to the plaintiff a sum of
Rs.9,48,007=00/(Rupees Nine Lakhs Forty Eight Thousand and Seven
Only) with further interest at the rate 24% per annum on principal sum
of Rs.4,15,288=00 (Rupees Four Lakhs Fifteen Thousand Two Hundred
Eighty Eight Only) from the date of filing of suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 15.03.2021 Gr.Bombay at Mumbai.
Dictated on : 15.03.2021
Transcribed on : 17.03.2021
Signed by H.H.J.on : 19.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
19.03.2021 at 5.30 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
15.03.2021
Judgment/order signed by P.O. on 19.03.2021
Judgment/order uploaded on 19.03.2021
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