Final Order 1

Order Details: Other
Pdf Text: 1 SJ 287/19 in Comm. Suit 698/21
SUMMONS FOR JUDGMENT NO. 287 OF 2019
IN
COMMERCIAL SUIT NO. 698 OF 2021
(ORIGINAL SUMMARY SUIT NO. 748 OF 2018)
CNR NO. : MHCC010128522019
Exh.5
Ramniklal S. Gosalia & Co. ….Plaintiff
Versus
Poly Dyno Chemicals Pvt. Ltd. & Anr. ...Defendant
Appearance:
Adv. Rutash Jadhav for Plaintiff.
None for defendant.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 6th OCTOBER 2022
J U D G M E N T
(Delivered on : 06.10.2022)
The plaintiff filed this Summary Suit for the recovery of the
amount of Rs. 7,72,467/ along with interest at the rate of 18% per
annum on the principal amount from the date of filling of the suit till
realization with cost.
2. The plaintiff moved this Summons for Judgment on
16.11.2019 in Summary Suit No. 748 of 2018. Subsequently, the suit
came to be registered as Commercial Suit No. 698 of 2021. Perused the
Summons for Judgment and suit proceeding. The defendant has not
filed any reply to the Summons for Judgment.
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3. Heard Learned Counsel Shri. Rutash Jadhav for the plaintiff.
4. The case of the plaintiff in brief is as under :
The plaintiff is a partnership firm and carries on the business of
import and distribution of chemicals and polymers. The defendant no. 1
is a company incorporated under the provisions of the Companies Act,
1956. The defendant no. 2 is the Director and is in charge of the said
company. Pursuant to the Purchase Order No. 42 dated 02.11.2016 and
44 dated 19.11.2016 placed by the defendant, the plaintiff has sold,
supplied and delivered to the defendant Caustic Soda Lye and has
raised their invoices upon the defendant. The defendant has received
the said goods without any protest. The total sum of Rs. 6,41,915/ is
due and payable by the defendant to the plaintiff for the aforesaid
goods sold, supplied and delivered. The plaintiff repeatedly requested
the defendant to pay the outstanding amount, but the defendant failed
and neglected to pay the amount. Therefore, the plaintiff addressed a
demand notice to the defendant. The defendant neither replied the said
notice nor paid the amount. The plaintiff filed the suit for the principal
amount of Rs. 6,41,915/ towards the goods sold, supplied and
delivered to the defendant and a sum of Rs. 1,30,552/ is due and
payable by the defendant towards interest to the plaintiff. The plaintiff
claimed the total amount of Rs. 7,72,467/ from the defendant along
with interest at the rate of 18% per annum.
5. In this case, the defendant has not filed any reply to the
Summons for Judgment. Therefore, the Summons for Judgment
proceeded without the reply of the defendant.
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6. Learned Counsel Shri. Rutash Jadhav for the plaintiff
submitted that the plaintiff has sold, supplied and delivered to the
defendant Caustic Soda Lye and has raised their invoices upon the
defendant. Accordingly, the bills were raised for the price of goods of
Rs. 6,41,915/. He further submitted that the documents filed by the
plaintiff along with Exh.3 shows that as per the Purchase Orders of the
defendant, the plaintiff has supplied the goods to the defendant. He
further submitted that the defendant has received the goods without
any protest. According to him, the total amount of Rs. 7,72,467/ is
outstanding from the defendant. By advancing these arguments, he
prayed that the Summons for Judgment be made absolute and the suit
be decreed.
7. Inspite of giving sufficient opportunity, the defendant and
his Advocate remained absent. The defendant has not argued the
matter. Hence, the matter is posted for order without the argument of
the defendant.
8. On careful perusal of the material on record, it is clear that
as per the order placed by the defendant, the plaintiff has sold, supplied
and delivered the goods to the defendant i.e. Caustic Soda Lye and has
raised their invoices upon the defendant. The total price of the said
goods were Rs.6,41,915/. The plaintiff placed on record the Purchase
Orders as well as the invoices which shows that the goods were
supplied to the defendant and has raised invoices upon the defendant.
The copy of the Ledger Statement at Sr. No. 2 also shows that an
amount of Rs. 6,41,915/ is outstanding from the defendant by way of
principal amount. It is also seen from the record that the plaintiff has
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sent notice to the defendant as per Exh.'D' and demanded the due
amount. The defendant has not replied to the said notice. The
documentary evidence tendered by the plaintiff was not challenged by
the defendant. It is material to note that the defendant has received the
goods without any protest. In short, the plaintiff has substantiated his
claim with the help of invoice/bill no. TE366 and TE384 dated
04.11.2016 and 21.11.2016 respectively and Ledger Account. The
defendant does not have any probable defence.
9. In the present case, originally the suit is registered as
Summary Suit and then reregistered as Commercial Suit. Re
registration of suit as Commercial Suit does not take away right of
plaintiff to have his matter tried by following procedure under Order 37
of the Code of Civil Procedure. Hence, the procedure under Order 37 of
the Code of Civil Procedure is applicable to the case in hand. It is seen
from the record that the defendant is served with copy of summons on
24.11.2021. It was expected from the defendant to file leave to defend
within 10 days from date of the service. However, the defendant has not
filed any reply to the Summons for Judgment and also not sought leave
to defend within 10 days from the date of service.
10. In this Summary Suit, the defendant is required to apply for
leave to defend within 10 days of the service of Summons for
Judgment. In Summary Suit, the defendant has no right to defend per
se, unless the leave is granted to him to defend the suit. In the plaint,
the specific averment is made to the effect that the suit is filed under
Order 37 and no relief which does not fall within the ambit of said rule
has been claimed in the plaint. If the defendant has not entered
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appearance for the stipulated period under Order 37 (2) of Code of
Civil Procedure, the consequences indicated under Order 37 Rule 2
would follow and the plaintiff would be entitled to succeed in the suit.
In Summary Suit, if the defendant does not enter the appearance within
10 days of the service of summons, the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to the decree.
There is absolutely no defence disclosed in the suit, in any
correspondence, prior to the plaint. No Affidavit in reply has been filed
within time to the summons. In view of the provisions contained in
Order 37 Rule 2(3) of the Code of Civil Procedure, 1908 on account of
the failure of the defendant to enter appearance, consequent to the
service of summons, the defendant is deemed to have admitted the
averments in the plaint, the plaintiff becomes entitled to the decree.
Nonetheless, this Court has considered the material on record so as to
ascertain whether the claim falls within the ambit of Order 37 of the
Code.
11. In view of stringent provisions contained in Order 37 Rule
2(2) and (3) and having regard to the facts that the defendant did not
enter the appearance in the aforesaid period and obtain any leave to
defend, the plaintiff would be entitled to decree as claimed in the terms
of summons. There is no other option left to the Court to pass the
decree.
12. In the light of above discussion, the defendant do not have
sufficient defence in the matter. The plaintiff is entitled to recover the
amount mentioned in the bill. The rate of interest is not fixed between
the parties by way of written agreement. Considering the nature of the
transaction, I am of the view that the plaintiff is entitled to claim
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interest at the rate of 12% per annum. The cost of the suit is liable to be
settled upon by the defendant. Accordingly, the Summons for Judgment
is liable to be allowed and the suit is also liable to be decreed. Hence, I
pass following order :
ORDER
1) The Summons for Judgment No.287 of 2019 is allowed.
2) The Commercial Suit No.698 of 2021 is decreed.
3) The defendants are directed to pay an amount of Rs.
7,72,467/ (Rupees Seven Lakh Seventy Two Thousand
Four Hundred Sixty Seven only) to the plaintiff 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 order.
4) The defendants shall bear the costs of the suit.
5) Court fee be refunded to the plaintiff as per rule.
6) Decree be drawn up accordingly.
7) Proceeding of Summons for Judgment No.287 of 2019 is
closed.
Dated : 06.10.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 06.10.2022
Typed on : 06.10.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07/10/2022 11.10 a.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.
06/10/2022
Judgment/order signed by P.O on 06/10/2022
Judgment/order uploaded on 07/10/2022
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