Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010109482019
Presented on 23-10-2019
Registered on 08-11-2019
Decided on 07-02-2023
Duration Yrs. M. Days
03 03 15
EXHIBIT-12
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
SUMMARY SUIT NO. 1090 OF 2019
AGT Foods India Private Limited, a
Company registered under the Companies
Act, 1956, having its office at FILIX
Building, 401 D, L.B.S.Road, Bhandup
(West), Mumbai-400078.
through its authorized officer Ms. Kinjal
Shah, Aged 23 years.
...Plaintiff
Versus
Sushilkumar Vasantlal, Age not known,
Proprietary firm of Sushil Vasantlal Bhalgt
having its address at 1364, Adat Bazaar
Chowk, Ahmednagar, Maharashtra-
414001.
...Defendant
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Appearance :
Ld. advocate Ms. Leena Sapra for plaintiff.
Defendant absent (
Exparte).
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 07/02/2023
JUDGMENT
( Dictated and pronounced in open Court)
This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil Procedure, 1908 (for short 'CPC') for recovery of principal sum
Rs.1,07,915/- along with interest thereon at the rate of 24% per annum
(p.a), as detailed in particulars of claim.
Plaintiffs case-
2. Plaintiff claims to have been engaged in the business of
Import and Export of food grains, pulses etc. It is contended that the
defendant through broker Mr. Kamlesh Sonawane placed purchase
order regarding purchase of ‘FABA Beans floor’ in July/August 2018.
Accordingly, Sales Contract dated 06-08-2018 was executed whereby
defendant placed an order for the purchase of 10 MT of floor. The
details of terms and conditions of supply are enumerated in the same
contract (Exh.6). It is further contended that goods were accordingly
delivered in two lots by way of Delivery Order dated 09-08-2018. It is
further contended that goods worth Rs. 4,70,100/- was supplied and
accordingly, bill of supply dated 10-08-2018 was raised.
3. Plaintiff further contended that defendant paid Rs. 2 lakhs
on 24-09-2018 and had also returned some goods worth Rs.1,62,185/-.
Thus, after adjusting part payment and goods returned, a balance of Rs.
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1,07,915/- was due and outstanding from the defendant. It is
contended that defendant avoided payment of the said amount.
Therefore, plaintiff vide legal Notice dated 23-05-2019, requested
defendant to make payment earliest along with interest at the rate of
24% p.a. It is further contended that despite notice, defendant failed
and neglected to pay the said amount. Hence, the present suit.
4. Writ of Summons was sent to the defendant through Post,
however same returned with the endorsement ‘refused’ and as such, this
Court held that the service was complete and suit proceeded
exparte.
5. Sub Rule (3) of Rule 2 of Order XXXVII of CPC, provides
that if the defendant, on receipt of summons, defaults to cause
appearance, the allegations in the plaint shall be deemed to be admitted
by him and the plaintiff shall be entitled to the decree. In matter in
hand, admittedly defendant failed to cause appearance, hence plaintiff
is entitled for the statutory presumption raised under said provision.
6. Apart from the said statutory presumption, plaintiff has
also placed on record affidavit of evidence at Exh.3. Plaintiff has placed
on record the Board Resolution authorizing Atul Waykar who deposed
on behalf of the plaintiff at Exh.5. Plaintiff has also placed on record
Sale Contract dated 06-08-2018 at Exh.6, Bill of Supply dated
10-08-2018 at Exh.7, Two delivery orders dated 09-08-2018 at Exh.8,
Credit Note dated 23-11-2018 at Exh.9, Legal Notice dated 23-05-2019
at Exh.10. Plaintiff has also placed on record the Customer Ledger
Summary at Exh.11 which shows the receipt of Rs.2 lakhs from the
defendant on 24-09-2018.
7. The evidence led by the plaintiff has gone unchallenged.
Plaintiff has placed on record ample material to prove its contentions
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and therefore, I hold that plaintiff is entitled to recover principal
amount of Rs.1,07,915/- from the defendant.
8. So far as interest part is concerned, Ld advocate for
plaintiff submits that the plaintiff has claimed interest at the rate of
24% p.a. The said interest is already agreed rate which is reflected in
the Sale Contract (Exh.6). Therefore, she prays to award interest at the
rate of 24% p.a.
9. Though the Sale Contract bears the condition regarding
payment of interest at the rate of 24% p.a. for the delayed payment,
however the said document is not signed by the defendant. So also the
interest at the rate of 24% is on higher side. Considering the nature of
transaction between the parties, I find that the award of interest at the
rate of 12% p.a. from the date of filing of the suit, would meet ends of
justice. Hence, the order-
ORDER
1. Summary Suit No. 1090 of 2019 is partly decreed with costs.
2. Defendant shall pay an amount of Rs.1,07,915/- (Rupees One Lakh
Seven Thousand Nine Hundred Fifteen only) to the plaintiff along
with interest at the rate of 12 % p.a. from the date of filing of the
suit i.e.23-10-2019 till realization of entire amount.
3. Court fees be refunded to the plaintiff, as per rules.
4. Decree be drawn up accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date- 07/02/2023. Court Room No.61
Dictated on : 07-02-2023
Transcribed on : 13-02-2023
Signed on : 14-02-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/02/2023 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07/02/2023
JUDGMENT/ORDER signed by P. O. on 14/02/2023
JUDGMENT/ORDER uploaded on 14/02/2023
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