Final Order 1

Order Details: Ex-parte Judgement
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MHCC010127122019
Lodged on 05/12/2019
Registered on 06/01/2019
Decided on 16/06/2022
Duration Y-2,M-6, D-11
EXHIBIT-6
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
SUMMARY SUIT NO. 72 OF 2020
M/s. ART LAND,
A registered partnership firm,
having its registered office at
120, Jogani Industrial Estate,
Senapati Bapat Road, Dadar
(West), Mumbai-400 028.
through its partner by name
Jayesh D. Savla
…. Plaintiff
V/s
M/S. ARAFA TRADERS
A registered partnership firm,
having its address at Men’s
Pavilion, Logans Road,
Thalassary, Kerala-670101.
….Defendant
Appearance :
Ld. Advocate Mr. Mittal Vira for plaintiff.
None for defendant (Exparte).
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CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 16/06/2022.
Judgment
This is the suit for recovery of an amount of Rs.1,27,856/-
along with interest thereon at the rate of 12% per annum till its
realization.
PLAINTIFF’S CASE-
2. The plaintiff is a partnership firm incorporated and registered
under the Indian Partnership Act 1932, having its registered office
address as mentioned in the cause title of the suit. The plaintiff has
business of manufacturing ready made shirts of men. The defendant is
also a partnership firm registered under the Partnership Act 1932. The
plaintiff states that it has sold and supplied to the defendant ready
made shirts for men vide their invoice bearing no.INB0152/17-18,
dated 21/06/2017 for Rs.1,27,856/-. The said goods have duly been
delivered by the plaintiff at the address of defendant through the
transporter by name M/s. Alleppey Parcel Services LLP vide their L.R.N.
T5AA26635874 dated 24/06/2017.
3. The plaintiff further states that the defendant had accepted
the delivery of the goods and has not made any grievances in respect of
the quality, quantity and rates in respect of the said goods. Defendant
has appropriated the said goods sold and supplied by the plaintiff, but,
in spite of repeated requests defendant has failed and neglected to
concede to the request of the plaintiff for the payment of outstanding
amount due under the invoice.
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4. The plaintiff further states that it issued notice dated
01/03/2019, through Advocate calling upon the defendant for the
payment of outstanding amount. Defendants replied the said notice
denying all the contents thereof through its advocate letter dated
08/04/2019. The defendant did not pay the amount under invoice.
Hence, the present suit.
5. Defendant was duly served with the writ of summons on
15/02/2020. However, defendant did not appear before this Court and
as such suit proceeded exparte against it.
6. In support of claim, plaintiff filed his affidavit of claim at
Exhibit-3 and reiterated its claim of recovery of Rs.1,27,856/- along
with interest at the rate of 12% p.a. Plaintiff has filed and relied upon
following documents.
Sr.
No.
Exhibit
No. Particulars
1 Exh.4/1 Original Invoice bearing No.INB0152/17-18. Dated
21/06/2017 for Rs.1,27,856/-.
2 Exh.4/2 Photocopy of Lorry Receipt bearing No. T5AA26635874
dated 24/06/2017.
3 Exh.4/3 Office copy of Notice of Advocate dated 01/03/2019
4 Exh.4/4 Original Reply of defendant dated 08/04/2019
7. So as to decide the present suit following points arise for my
consideration. I have recorded my findings thereon, for the reasons
provided as under :-
Sr. No. Points Findings
1. Whether plaintiff is entitled to
recover an amount of Rs.1,27,856/-
from defendant?
If yes, at what rate interest?
Plaintiff is entitled to
recover an amount of
Rs. Rs.1,27,856/- from
the defendant along
with interest @ 9% p.a.
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from date of filing of
the suit till realization.
2. What order and decree? Suit is decreed as per
final order.
REASONS AS TO POINT NO. 1
8. This being a suit for recovery of an amount, it is imperative to
examine whether the plaintiff has placed on record requisite evidence to
prove its entitlement. Plaintiff has examined himself in the form of
claim affidavit as the suit is exparte. The contents of claim affidavit
remained unchallenged.
9. It is the case of the plaintiff that it had supplied men shirts to
the defendant as per the invoice Exhibit-4/1 dated 21/06/2017, the
original copy of invoice is placed on record. Its contents are proved. The
office copy of demand notice issued by plaintiff to the defendant on
01/03/2019, demanding an amount of Rs.1,27,856/- against the said
invoice, is on record. So also, the reply to the notice sent by defendant
through his advocate is placed on record. From the said reply, it can be
gathered that though the defendant denied that he had ever ordered the
goods, however he admits that he had received the parcel of goods
supplied through M/s. Alleppy parcel service LLP. He further submits
that those goods were unordered goods, therefore, he asked his usual
Supplier M/s. Savo Investments to take back the goods. However, as
there was no contact in between the defendant and the plaintiff, the
goods remained as it is. Therefore, it has been replied that plaintiff is
not entitled to claim any amount for the said goods.
10. From the reply of the defendant it is amply clear that
defendant received the goods, however he did not take steps to return
the goods to the plaintiff though he claimed it to be unordered one. In
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view of Section 70 and 71 of Indian Contract Act 1872, the defendant
being in position of bailee, was duty bound to return the goods received
non-gratuitously. Furthermore, it appears that the defendant has in
spite of having received the goods which obviously had details of the
person sending it, did not thought it fit either to return the goods or to
pay the amount due for the said goods. Thus, the defendant has
appropriated the goods. As such, the plaintiff has proved that it had
delivered the goods to the defendant under Invoice No.No.INB0152/17-
18 amounting of Rs.1,27,856/-. As admittedly, the said amount is not
paid by the defendant, it is obvious that the plaintiff is entitled to
recover the said amount from the defendant.
11. That plaintiff claims interest at the rate of 12% p.a. on the
amount of Rs.1,27,856/- from the date of delivery of goods till its
realization. There is no agreed rate of interest in the said transaction.
Though the goods are supplied in the year 2017, the present suit is filed
in the year 2020. Though the suit is within limitation, the plaintiff has
not filed the suit immediately after the neglect on the part of the
defendant to pay the said amount was discovered. Therefore, I find that
claim of plaintiff regarding 12% interest is excessive. However, the
transaction being out of Trade and Commerce, I find it just and proper
to award interest at the rate of 9% p.a. from date of filing of the suit till
its full realization. Hence, I answer point No.1 accordingly.
REASONS AS TO POINT NO.2.
12. From the findings recorded to the point No.1, it is clear that
plaintiff is entitled to recover an amount of Rs.1,27,856/- from the
defendant along with interest at the rate of 9% per annum. Hence, in
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answer to point No. 2, I proceed to pass following order.
ORDER
1) Summary Suit No. 72 of 2020 is partly decreed with costs.
2) Defendant do pay an amount of Rs.1,27,856/-(Rupees One
Lakh Twenty Seven Thousand Eight Hundred Fifty Six Only)
to the plaintiff along with interest at the rate of 9% per
annum from the date of filing of suit till its realization.
3) Decree be drawn up accordingly.
Date- 16/06/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 16/06/2022
Transcribed on : 16/06/2022
Signed on : 18/06/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/06/2022 at 4.00p.m. Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
16/06/2022
JUDGMENT/ORDER signed by P. O. on 18/06/2022
JUDGMENT/ORDER uploaded on 18/06/2022
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