Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm. Suit No.43/2021. 1 Ex-parte Judgment (Exh.14).
MHCC010110902019
Presented on : 01.11.2019
Registered on : 15.02.2019
Decided on : 05.10.2021
Duration : 01 Y, 11 M, 5 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO.43 OF 2021
Exh. 14
M/s. Angel's Aluminium Corporation
A Partnership Firm duty registered under
Indian Partnership Act having registered
office at 56, KIKA Street, 2nd floor,
Gulalwadi, Mumbai – 400 004. ...Plaintiffs
Versus
Mr. Ratnakar Joshi
Proprietor of M/s. Param Enterprises
carrying on business at Plot No. A467
Road No.34, Wagle Industrial Estate,
Thane – 400 604 ...Defendant
Ms. Achala Hatode, Advocate for the plaintiff.
None for the defendant – (Exparte).
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 5th OCTOBER, 2021.
JUDGMENT (EXPARTE)
This is suit for recovery of money.
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Comm. Suit No.43/2021. 2 Ex-parte Judgment (Exh.14).
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a Partnership firm. Similarly, the defendant
is Proprietary concerned. Pursuant to the order placed by the
defendant, the plaintiffs sold and supplied Aluminum Sheets of various
sizes to the defendant under three tax invoices total aggregating for
Rs.9,82,319/ and submitted to the defendant for payment. The
defendant received the material and tax invoices and he did not raise
any objection regarding nature of the material received by him. As the
defendant failed to make payment within 30 days from the date of tax
invoice, advocate for the plaintiff issued demand notice dated
18.01.2019 to the defendant which defendant had duly received on
21.01.2019. However, inspite of repeated demands, the defendant
failed and neglected to pay the balance amount. The plaintiff claimed
the principal amount with interest at the rate of 24% p.a. i.e.
Rs.17,71,607/ in toto. The plaintiff also sought relief of interest at the
rate of 24% p.a. on the principal amount of Rs.9,82,319/ with cost.
3. The defendant was duly served with writ of summons as
per affidavit of service (Exh.2), but he failed to appear and oppose the
claim of the plaintiff. Therefore, my learned Predecessor passed the ex
parte order against him on 17.03.2021.
4. PW1 Yuvraj Pawar, deposed on evidence affidavit ( Exh.3)
and proved documents filed with list of documents (Exh.4). Proved
documents are at Exh.5 to Exh.12. The plaintiff closed evidence vide
pursis (Exh.13). I also heard learned counsel Ms. Achala Hatode, for
the plaintiff.
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Comm. Suit No.43/2021. 3 Ex-parte Judgment (Exh.14).
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.17,71,607/ ?
Partly affirmative
as to principal
amount
2. Does the plaintiff prove that he is
entitled to interest on principal sum of
Rs.9,82,319/ ? If yes, at what rate of
interest ?
In the Affirmative.
@ 15% p.a.
3. What order as to cost ? As per final order.
4. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 3 :
6. On perusal of contents in evidence affidavit (Exh.3) filed
by witness PW1 Yuvraj Pawar, it appears that plaintiffs had supplied
goods at the desired destination of the defendant as per order and
accordingly, tax invoices (Exh.6 colly to Exh.8 colly) were raised.
Original dischonoured cheque dated 27.10.2018 and photocopy of
inward return memo, statement of account, demand notice dated
18.01.2019 along with postal receipts and acknowledgment are also
placed on record vide Exh.09 colly, Exh.10 colly and Exh.11 colly.
7. PW1 Yuvraj Pawar has also proved power of attorney (Exh.05)
authorizing him to represent the company in the court. From demand
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Comm. Suit No.43/2021. 4 Ex-parte Judgment (Exh.14).
notice dated 18.01.2019 (Exh.11 colly.) it appears that the defendant
has duly served with demand notice, but, he failed to reply the same.
In such circumstances, there is no scope to disbelieve tax invoices
(Exh.6 colly to Exh.8 colly), original dischonoured cheque dated
27.10.2018 (Exh.9 colly) and statement of account (Exh.10 colly).
8. It is established from oral and documentary evidence on
record that the plaintiff had provided material to the defendant. The
defendant failed to pay principal amount. In the light of all above
discussion, the plaintiff has succeeded in proving his case with the help
of sufficient oral and documentary evidence. So far as interest rate is
concerned, it is mentioned at the bottom of tax invoices that interest at
the rate of 30% p.a. will be charged if not paid within due date. The
plaintiff has shown dates of invoices as due dates at the bottom of
invoices. In short, the plaintiff is claiming interest on outstanding
amount from the date of invoices, but he has ready with rate of interest
from 30% to 24% p.a. Interest claimed by plaintiff is also exorbitant.
Normally, interest in the range of 9% to 15% is claimed in commercial
transaction. Therefore, reasonable reduction in the rate of interest is
warranted. Cost of the suit is liable to be imposed on the defendant. In
the light of above discussion, I record my findings as to points no.1 and
2 partly in the affirmative. Hence, I pass the following order :
ORDER
1. Commercial Suit No.43 of 2021 is partly decreed.
2. The defendant is directed to pay the principal amount of
Rs.9,82,319/ (Rupees Nine Lakhs Eighty Two Thousand Three
Hundred and Nineteen only) to the plaintiff with interest at the rate of
15% per annum from the date of invoices till its realization.
3. The defendant shall bear the costs of the suit.
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Comm. Suit No.43/2021. 5 Ex-parte Judgment (Exh.14).
4. Decree be drawn accordingly.
(R.R.BHAGWAT)
Judge
City Civil & Sessions Court,
Date : 05.10.2021 Mumbai
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Comm. Suit No.43/2021. 6 Ex-parte Judgment (Exh.14).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.10.2021, 04.00 p.m.
UPLOAD DATE AND TIME (Shilpa P. Pawar)
Stenographer (GradeI)
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 05.10.2021
Judgment/Order signed by P.O. on 05.10.2021
Judgment/Order uploaded on 05.10.2021
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