Final Order 1

Order Details: Other
Pdf Text: 1 SJ 279/19 in Comm. Suit 804/21
Lodged on : 15.09.2018
Admitted on : 04.10.2018
Decided on : 08.07.2022
Duration : Y M D
3 9 23
SUMMONS FOR JUDGMENT NO. 279 OF 2019
IN
COMMERCIAL SUIT NO. 804 OF 2021
(ORIGINAL SUMMARY SUIT NO. 1129 OF 2018)
CNR NO. : MHCC010123042019
Exh.3
Mr. Prakash Kamlakant Jaiswal
Age 48 years, Occ. Businessman,
R/at : Ocean View, Union Park,
Khar (W), Mumbai400 052. ….Plaintiff
Versus
Mr. Surender Singh (Proprietor)
Aged 50 years, Occ. Businessman,
Amar Engineering
R/at : B/5, Dharamraj Inds. Estate,
Lake Road, Bhandup (W),
Mumbai400 076.
And also having address at F11,
Sharad Estate, Lake Road,
Bhandup (W), Mumbai400 078. ...Defendant
Appearance:
Adv. Prakash Hegde for Plaintiff.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 08th JULY 2022
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2 SJ 279/19 in Comm. Suit 804/21
J U D G M E N T
(Delivered on : 08.07.2022)
The plaintiff has presented the Summary Suit for the
recovery of the amount of Rs.11,00,000/ along with future interest at
the rate of 18% per annum from the date of filling of the suit till
realization. Initially, the suit came to be registered as Summary Suit
No.1129 of 2018. After scrutiny of the papers, it came to be registered
as Commercial Suit No.804 of 2021. The plaintiff moved this Summons
for Judgment on 19.11.2019. Perused the Summons for Judgment and
Affidavit. I have gone through the suit proceeding.
Brief facts of the plaintiff's case are as under:
2. The plaintiff is a businessman dealing in scrap trading and
other scrap related products for last 20 years. The plaintiff was in need
of 75 (Degree) oblique Type High Speed Corrugation Machine with
winding Bracket. The plaintiff came to know that, the defendant was
expert in supplying such type of machines. The plaintiff has visited the
office of the defendant and checked the various types of related
machines. It was brought to the notice of the plaintiff that, the cost of
said machine would be approximately Rs.40,00,000/. The plaintiff
contacted the defendant and requested for a quotation. Thereafter, the
defendant issued the quotation on the letter head of his firm M/s. Amar
Engineers vide the Quotation dated 21/11/2015. It was clearly
mentioned in the quotation that, 30% amount of quotation has to be
paid at the time of placing the order.
3. The plaintiff further submit that, he was contacting other
suppliers of such machines and after studying the market properly he
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paid an amount of Rs.1,00,000/ on 27/11/2015 through HDFC Bank,
Malad (East) branch, Mumbai. Thereafter, he transferred a further
amount of Rs.10,00,000/ on 11/12/2015. Hence, totally an amount of
Rs.11,00,000/ was paid to the defendant. The plaintiff had sought
certain modification in the said machines and defendant was pleased to
give quotation dated 01/08/2015, 04/11/2015 and lastly on
06/11/2015. The plaintiff submits that, he was constantly enquiring
with the defendant, but defendant failed and neglected to respond to
the same. Defendant failed to reply as to when the machine would be
delivered. The plaintiff had no other alternative but to issue legal notice
through his advocate on 24/02/2018 which was duly received by the
defendant. Defendant has not replied to the said notice. The defendant
is not interested and not supplying the machinery and not returning the
amount of Rs.11,00,000/ alongwith interest. Hence, the plaintiff was
constrained to file present suit for recovering an amount of Rs.
11,00,000/ along with interest from the defendant.
4. By virtue of order of chamber summons No.61/2019, the
defendant was permitted to file the vakalatnama. Thereafter, the
plaintiff has moved summons for judgment. The defendant also filed
the draft notice of motion which came to be registered No.3388/2021.
The defendant did not produce on record the registered notice of
motion and therefore, the notice of motion No.3388/2021 was disposed
off by my Learned Predecessor. The defendant has not filed his reply to
the summons for judgment.
5. Heard Learned Advocate Shri. Prakash Hegde for plaintiff.
The defendant and his advocate remained absent for argument.
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6. The Learned Advocate for the plaintiff referred contents in
the plaint and pointed out the documents in the course of arguments.
According to him, the plaintiff was in need of High Speed Machine and
he approached to the defendant. He also submitted that, the plaintiff
paid an amount of Rs.11,00,000/ to the defendant. The defendant did
not repay the said amount and also not delivered the machine. He also
invited the attention of the Court towards copy of quotation, copy of
statement of account and copy of notice. He also argued that no reply
was sent to the notice issued by the plaintiff. He submitted that, total
amount of Rs.11,00,000/ is outstanding from the defendant. Hence,
he prayed to allow the Summons for Judgment and decree the suit.
7. On the contrary, defendant and his Advocate remained
absent for argument.
8. In the present case, it reveals from the record that the
defendants failed to file reply to the Summons for Judgment. Therefore,
the Summons for Judgment proceeded without reply of the defendant.
It means that the averments made in the suit were not denied/disputed
by the defendant by filling his reply. Therefore, it can be said that the
averments in the suit were deemed to be admitted by the defendants.
9. On perusal of the proceedings, it appears that the plaintiff
has placed on record the copy of quotation which is marked as Exh.A.
The said copy of quotation shows that, it is mentioned in it that, the
30% amount of quotation has to be paid at the time of placing the
order. The copy of statement of account which is marked as ArtcileB
shows that, an amount of Rs.1,00,000/ was paid to the defendant vide
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cheque No.000031 on 27/11/2015. The said statement of account also
shows that, on 11/12/2015 an amount of Rs.10,00,000/ was
transferred through NEFT. The letter dated 20/08/2018 shows that the
total amount of Rs.11,00,000/ was paid by the plaintiff to the
defendant. Thus, it appears that, the total amount of Rs.11,00,000/ is
outstanding from the defendant.
10. The copy of notice annexed to the plaint which is marked
as ArticleC shows that, the notice was sent to the defendant at his
registered address. It was duly served to the defendant. No reply was
sent to the said notice by the defendant. In spite of service of notice,
the defendant failed to pay the outstanding amount to the plaintiff. In
support of the pleading, the plaintiff also filed affidavit in support of
Summons for Judgment. The documentary evidence adduced by the
plaintiff was remained unchallenged. Hence, I have no reason to
disbelieve the evidence adduced by the plaintiff. The plaintiff has
proved that, the principal amount of Rs.11,00,000/ is due from the
defendant. The defendant has not filed any written statement to the
suit. Considering the transaction between the parties, I am of the view
that, the plaintiff has established that an amount of Rs. 11,00,000/ is
outstanding from the defendant. The plaintiff has proved his case.
Hence, he is entitled to recover the outstanding amount of
Rs.11,00,000/ from the defendant.
12. So far as interest rate is concerned, the plaintiff has claimed
interest at the rate of 18% per annum from the date of suit. In my view,
the said interest is exorbitant. The interest at the rate of 12% per
annum would be just and proper. In short, the plaintiff has proved that,
the total amount of Rs.11,00,000/ is due from the defendant. Hence,
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the plaintiff is entitled to be recovered the amount alongwith further
interest at the rate of 12% per annum. In the light of the above
discussion, it is concluded that, the plaintiff established their claim
against the defendant. Hence, the suit is liable to be decreed. The cost
of the suit is liable to be imposed on the defendant. The Summons for
Judgment needs to be allowed. The suit is liable to be decreed with
costs. Hence, I pass the following order :
ORDER
1. Summons for Judgment No.279 of 2019 is allowed.
2. Commercial Suit No.804 of 2021 is decreed with costs.
3. The defendant is directed to pay a sum of Rs.11,00,000/
(Rupees Eleven Lakhs only) to the plaintiff together with
interest at the rate of 12% per annum from the date of
filing of the suit till the date of realization within three
months from the date of this decree.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn up accordingly.
6. Proceeding of Summons for Judgment No.279 of 2019 is
closed.
Dated : 08.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 08.07.2022
Typed on : 08.07.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/07/2022 3.00 p.m. Shrawanti A. Karre
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO.31)
Date of Pronouncement of
Judgment/Order.
08/07/2022
Judgment/order signed by P.O on 12/07/2022
Judgment/order uploaded on 12/07/2022
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