Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm. Suit No.2722019
MHCC010117992019 Presented on : 03/03/2022
Registered on : 19/04/2022
Decided on : 20/08/2022
Duration : Y/4M/1D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.272 OF 2019
M/s. Yug International Private Limited
a company incorporated under the Companies
Act, 1956, having its Corporate Office at 520,
Tulsiani Chambers, Nariman Point, Mumbai
400021. ...PLAINTIFF
VERSUS
Messrs Speciality Polymers Private Limited
a company incorporated under the Companies
Act, 1956, having its registered office at 5A,
6th floor, New Excelsior Building, Wallace
Street, Fort, Mumbai400001. ...DEFENDANT
Shri. R. K. Thakkar, learned advocate for the plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 20/08/2022)
This is a suit for recovery of sum of Rs.58,92,876/
together with interest @ 18 % p.a. on principal sum of Rs.38,99,248/
from the date of suit till realisation of entire amount.
2. It is case of plaintiff that, it is a Company incorporated
under the provisions of the Companies Act 1956. It is carrying on
business of dealer and importer in all kinds of chemicals and solvents
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and sell and deliver the material to them as per their orders placed with
them. Defendant is a private Limited Company. The defendant is one of
its customers to whom the plaintiff had sold and delivered the materials
as per their purchase orders. Plaintiff raised tax invoices
No.DEL/032/1617 dated 27 th April, 2016 for Rs.13,34,310/,
DEL/033/1617 dated 7 th May 2016 for Rs.12,78,654 and DEL/035/16
17 dated 12th May, 2016 for Rs.12,86,284/ inclusive of applicable taxes
paid to the concerned Government Authorities respectively by them
aggregating to Rs.38,99,248/. Defendant has issued six post dated
cheques as under towards the payment of outstanding amount.
Sr.
No.
Date Cheque No. Amount
1 26/06/2016 610117 6,43,142/
2 30/06/2018 610118 6,43,142/
3 20/06/2016 610119 6,45,000/
4 22/06/2016 610120 6,33,654/
5 11/06/2016 609127 6,55,088/
6 13/06/2016 609128 7,00,000/
39,20,026/
3. Defendant admitted his liability by email dtd.15/06/2016.
On 03/09/2016 plaintiff received email of defendant wherein he asked
plaintiff not to deposit aforesaid cheques as he would make payment by
RTGS within a week. On the request of director of defendant namely
Mr. Padmanabhan Sharma, the plaintiff returned the cheque number
610120 of Rs.6,33,654/. Remaining five cheques amounting to rupees
32,86,372/ were deposited in the bank for encashment but it
dishonoured due to “Account Blocked”. Thereafter, plaintiff filed two
criminal complaints under Section 138 of NI Act. Amount of
Rs.38,99,248/ is due and payable by defendant. Plaintiff has sent letter
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3 Comm. Suit No.2722019
through advocate on 14/01/2019 to the defendant and called upon him
to pay outstanding sum with interest @ 18% p.a. Hence, plaintiff is
entitled for outstanding amount of Rs.58,92,876/ together with
interest and also interest @ 18% p.a. on principal sum of
Rs.38,99,248/.
4. Inspite of service of suit summons, defendant did not
appear and hence suit proceeded exparte against him.
5. On above facts following points arise for determination of
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiff proved that it has
sold, supplied and delivered goods of
Rs.38,99,248/ between April, 2016 to
May, 2016 to defendant ? …Yes.
2. Whether the plaintiff proved that
defendant is in outstanding of
Rs.58,92,876/ together with interest @
18% p.a. ? …Yes.
3. Whether plaintiff is entitled for interest @
18 % p.a. from the date of suit till
realisation of the entire principal amount ? ...Yes.
4. Whether plaintiff is entitled for the relief
claimed ? ...Yes.
5. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 TO 4:
6. Heard learned counsel of Plaintiff. Plaintiff has examined
its Sales Executive Rikin Suresh Mehta (PW1) to prove its case. He
reproduced all content of plaint in his chiefexamination. plaintiff has
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filed photocopy of resolution dtd.02/04/2019, email of prepurchase
order, photocopy of invoice, email regarding confirmation of issuance of
cheque, photocopy of cheque, photocopy of bank memo.
7. Heard learned counsel of plaintiff on the point of
secondary evidence. He relied on case law of Indian Overseas Bank Vs.
Trioka Textiles Industries and Ors. : MANU / MH / 1069/2006,
wherein Hon’ble Bombay High Court held, an independent application
by way of Chamber Summons or Notice of Motion is neither required
nor desirable for party to use secondary evidence before judge
recording evidence/hearing the matter without taking out such an
application.
8. In the present case plaintiff has filed photocopy of some
document with plaint. Matter proceeded exparte against the defendant.
Thereafter plaintiff has filed his chiefexamination at Exh.9. Documents
referred in chiefexamination and plaint filed with plaint are marked a
Exh.13 to 14 and 18 to 20. However, the photocopies of the resolution
dtd.02/04/2019, photocopy of invoice No.DEL/032/1617,
DEL/033/1617 and DEL/035/1617, photocopy of cheque alongwith
bank memo are not marked exhibit because they are photocopies.
Learned counsel of plaintiff contended that plaintiff has mentioned in
his chiefexamination to grant him permission to lead secondary
evidence on these documents.
9. Evidence of PW1 remained unchallenged as suit proceeded
exparte against the defendant. Therefore, considering testimony of
PW1 and the case law the photocopies of the documents are admitted
in evidence. Evidence of PW1 is supported by documentary
evidence(Exh.13,14,15, 17 to 20) : extract of resolution, certificate
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issued by Registrar of Companies, purchase orders, invoice, email
dtd.15/06/2015, 03/09/2015, cheque, bank memo, notice
dtd.14/01/2019, computerized copy of invoice.
10. In view of evidence of PW1 and documentary evidence, it
becomes clear that plaintiff has sold, supplied and delivered goods total
of Rs.38,99,248/ as per tax invoices No.DEL/032/1617 dated 27 th
April, 2016, DEL/033/1617 dated 7 th May 2016 and DEL/035/1617
dated 12th May, 2016. Sum of Rs.38,99,248/ remained to be paid by
defendant. On the point of rate of interest in commercial transaction,
Hon’ble Delhi High Court in a case of Sasumorov Enterprises Private
Limited V/s. Odeon Builders Pvt. Ltd, CS(Comm) 927/2016
dtd.16/11/2018, observed and held, “as far as the claim of the plaintiff
for the relief of pre suit, pendente lite and future interest @24% p.a. is
concerned, though undoubtedly the invoices of the plaintiff on
defendant contain a clause to the said effect but considering the
prevalent rates of interest, even quacommercial transactions the claim
for interest @ 24% p.a. is found to be excessive. The plaintiff is found
entitled to pre suit interest @ 15% p.a., from expiry of 60 days of the
date of each of the invoices and till the date of institution of the suit and
is avoided interest pendente lite and future @ 9% p.a.”
11. In view of aforesaid case law, considering entire facts and
prevailing market rate of interest, it is desirable to grant interest @18%
p.a. Hence, as per the said rate plaintiff is entitled for principal amount
of Rs.38,99,248/ plus interest Rs.19,93,628/ calculated @ 18% p.a.
on principle sum. So also plaintiff is entitled for interest @ 18% p.a.
from date of filing of suit till realization of amount. Thus, I answered
point Nos. 1 to 4 as above. Hence, I pass the following order.
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ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to plaintiff the
amount of Rs.58,92,876/.
3. Defendant is directed to pay interest @ 18% p.a. on
principal sum of Rs.38,99,248/ to plaintiff from the
date of suit till realization of the said amount.
4. Decree be drawn up accordingly.
Date : 20/08/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 20/08/2022.
Checked on : 20/08/2022.
Signed on : 20/08/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22/08/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 20/08/2022.
Order signed by P.O. on 20/08/2022.
Order uploaded on 22/08/2022.
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