Final Order 1

Order Details: Other
Pdf Text: 1 SJ 280/19 in Comm. Suit 806/21
Lodged on : 17.09.2018
Admitted on : 02.11.2018
Decided on : 13.06.2022
Duration : Y M D
3 8 27
SUMMONS FOR JUDGMENT NO. 280 OF 2019
IN
COMMERCIAL SUIT NO. 806 OF 2021
(ORIGINAL SUMMARY SUIT NO. 1293 OF 2018)
CNR NO. : MHCC010118842018
Exh.2
M/s. Jina Machine Tools
Having its registered office at
170/2, Jot Society, Jyotiba Phule
Road, Dadar East, Mumbai – 400 014.
Through its Proprietor
Mr. Appasaheb Jinagouda
Aged : 73, Mob No.: 9323331213
Email ID Swagatj@gmail.com ….Plaintiff
Versus
M/s. Bhimashankar Agro Services & Ors.
A Proprietary firm, Having its addresses
at Bhimashankar Agro Services, Pune
Nashik Road, Near Market Yard,
Chakan, Pune – 411002.
And
Somatne Phata, Mumbai, Pune Road,
Opposite to Pavana Bank,
Somatane, Pune – 410506.
2. Mr. Malojirao Rangarao Kakade
Proprietor of Bhimashankar Agro Services
Having his addresses at C2, Flat No. 704,
Gangadham, Phase 1, Goltekadi,
Market Yard, Pune – 411067
Phone No. 9822194629
And
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C/o. Manisha M. Kakade,
C2, Flat No. 703, Gangadham
Phase 1, Goltekadi, Market Yard,
Pune 411067.
And
A/p Nimbut, Tal Baramati,
Dist. Pune, PIN 412102
And
A/P Khed, Tal Kajrat,
Dist. Ahmednagar, PIN 414403. ...Defendants
Appearance:
Adv. Asad Bukhari for Plaintiff.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 13th JUNE 2022
J U D G M E N T
(Delivered on : 13.06.2022)
The plaintiff has presented the Summary Suit for the
recovery of the amount of Rs. 81,15,612/ 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.
1293 of 2018. After scrutiny of the papers, it came to be registered as
Commercial Suit No. 806 of 2021. The plaintiff moved this Summons
for Judgment on 22.11.2019. Perused the Summons for Judgment and
Affidavit. I have gone through the suit proceeding.
Brief facts of the plaintiff's case is as under:
2. The plaintiff is represented by his son through Power of
Attorney. The defendant no. 2 is a Proprietor and carrying on business
in the name and style as M/s. Bhimashankar Agro Services and is doing
business at the address mentioned in the plaint. The defendant no. 2 is
handling daytoday activities of the defendant no. 1. The plaintiff
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submitted that they have sold, supplied and delivered to the defendants
the goods from time to time as per the orders placed by the defendants
and as per the tax invoices. The defendants have accepted the said
goods in good order and condition.
3. The plaintiff further submitted that the defendants had
placed order of 42 tractors of Force Motors Ltd. The plaintiff sold the
same as per order placed by the defendants and raised necessary
invoices. The said 42 tractors were delivered to the defendants and the
same were acknowledged and received by the defendants. The
defendants have accepted the goods worth Rs. 1,68,69,638/ without
any complaint. The defendants have paid Rs.89,87,456/ out of the
total amount. The remaining amount of Rs. 78,82,182/ along with
interest of Rs. 2,33,430/, totaling to Rs. 81,15,612/ is outstanding and
payable by the defendants to the plaintiff and which was confirmed by
the defendants in their confirmation of accounts. The defendants have
furnished undertaking cum Affidavit on 08.11.2016 confirming the
outstanding payment and further undertake to make payment on or
before 31.03.2017.
4. The plaintiff further requested the defendants to clear the
outstanding amount, but the defendants avoided to pay the outstanding
amount. Therefore, the plaintiffs sent notice through Advocate on
25.06.2018 calling upon the defendants to make the payment. The said
notice was sent to the defendant no. 2. After agreeing/confirming to
pay the outstanding amount and in spite of receiving the Advocate's
letter, the defendants failed to keep their promise. The defendants have
miserably failed to repay the amount. While going through the
particulars of claim, the plaintiff has claimed an amount of Rs.
81,15,612/ along with interest at the rate of 18% per annum.
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Accordingly, the suit was filed by the plaintiff for the recovery of the
amount of Rs. 81,15,612/ along with interest on the principal amount.
5. As per the order passed on 25.02.2021 in Exhibit 1, the
Summons for Judgment proceeded without reply of the defendants.
6. Defendants appeared and they have filed Notice of Motion
bearing no. 2213 of 2021 for setting aside no reply order. After hearing
both the parties, my Learned Predecessor dismissed the Notice of
Motion bearing no. 2213 of 2021 and the Notice of Motion was closed.
Hence, the suit is proceeded without reply of the defendants.
7. Heard Learned Advocate Shri. Asad Bukhari for the
plaintiff. He referred contents in the plaint and pointed out the
documents in the course of arguments. According to him, the plaintiff
sold 42 tractors to the defendants and defendants acknowledged the
same. The defendants have accepted the goods worth Rs.1,68,69,638/.
According to the plaintiff, he requested the defendants to pay the
outstanding amount, but the defendants failed to clear the outstanding
dues. He also invited the attention of the Court towards copy of the
notice issued to the defendants for making payment of outstanding
amount. He also argued that no reply was sent to the notice issued by
the plaintiff. The defendants denied the responsibility to pay the
amount. He also shown the various documents annexed with the plaint.
He submitted that total amount of Rs.81,15,612/ is outstanding from
the defendants. Hence, he prayed to allow the Summons for Judgment
and decree the suit.
8. On the contrary, Learned Advocate Shri. Harshal Damania
for the defendants remained absent for argument.
9. In the present case, it reveals from the record that the
defendants failed to file reply to the Summons for Judgment. Therefore,
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the Summons for Judgment proceeded without reply of the defendants.
It means that the averments made in the suit were not denied/disputed
by the defendants by filling his reply. Therefore, it can be said that the
averments in the suit were deemed to be admitted by the defendants.
10. On perusal of the proceedings, it appears that the plaintiff
has placed on record the copies of invoices, Purchase Order along with
the plaint. The copy of undertaking cum affidavit at Exhibit 'B' shows
that the defendants have purchased 42 tractors worth Rs.1,68,69,638/
The said undertaking shows that the defendants have paid an amount
of Rs.89,87,456/ to the plaintiff on 31.08.2016. The copy of
undertaking shows that the total amount of Rs.81,15,612/ is
outstanding from the defendants to the plaintiff and this fact is
admitted by the defendants in the said undertaking.
11. The copy of notice annexed to the plaint shows that the
notice was issued to the defendants by the plaintiff and the defendants
were requested to make the payment of Rs.81,15,612/ along with
interest. The said notice was duly served to the defendants. No reply
was sent to the said notice by the defendants. The defendants by
making part payment to the plaintiff have admitted that the amount
was due from him and he promised to make the payment of remaining
amount of Rs.81,15,612/. In spite of service of notice, the defendants
failed to pay the outstanding amount to the plaintiff. Therefore, the
plaintiff was constrained to file the suit. In support of the pleading, the
plaintiff also filed affidavit in support of Summons for Judgment. The
oral and documentary evidence adduced by the plaintiff was remained
unchallenged. Therefore, I have no reason to disbelieve the evidence
adduced by the plaintiff. According to the plaintiff, the principal amount
of Rs. 81,15,612/ is due and interest of Rs.5,35,125/ is due from
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01.04.2017 till filling of the suit. The plaintiff has already proved that
the principal amount of Rs. 81,15,612/ is due from the defendants. So
also, an amount of Rs. 5,35,125/ is also due from the defendants from
01.04.2017 till filling of the suit. Thus, total amount of Rs. 86,50,737/
is due from the defendants. Considering the transaction between the
parties, I am of the view that the plaintiff has sufficiently established
that the amount of Rs. 86,50,737/ is due from the defendants. The
defendants have not filed their Written Statement to the suit. Therefore
it can be said that plaintiff has proved his case. Hence, 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. 280 of 2019 is allowed.
2. Commercial Suit No. 806 of 2021 is decreed with costs.
3. The defendants are directed to pay a sum of Rs.86,50,737/
(Rupees Eighty Six Lakhs Fifty Thousand Seven Hundred
and Thirty Seven only) to the plaintiff together with
interest @ 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 defendants shall bear the costs of the suit.
5. Decree be drawn up accordingly.
6. Proceeding of Summons for Judgment No. 280 of 2019 is
closed.
Dated : 13.06.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 13.06.2022
Typed on : 13.06.2022
Checked & Sign on : 15.06.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
15/06/2022 5.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO.31)
Date of Pronouncement of
Judgment/Order.
13/06/2022
Judgment/order signed by P.O on 15/06/2022
Judgment/order uploaded on 15/06/2022
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