Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010134322019 Presented on 20-12-2019
Registered on 14-01-2020
Decided on 18-09-2023
Duration 03: 08M:29D
Exhibit 13
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 102 OF 2020
Bravo Cable Trays Pvt Ltd. ]
A company registered under the ]
Indian Companies Act of 1956 and ]
having it's registered office at ]
at 4, Ismail Bldg, 2nd Floor, Opp. G.T.Hospital ]
33, Pathak Wadi, Lohar Chawl, Mumbai-400 002. ]
Through its Constituted Attorney ]
Mr.Haresh Shah Age 55 years. ]...Plaintiff
V/s. ]
1. Shree Saidatta Electricals ]
a firm having it's office at ]
Shop No.3, Guruwar Peth, ]
Satara-415002. ]
2. Prakash Majumdar ]
An adult Indian Inhabitant ]
Carrying on business as claiming to ]
be Sole Proprietor in the name and ]
style of/ ]
Shree Saidatta Electricals ]
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2 Sum Suit No.102/2020
a firm having it's office at ]
at Shop No.3, Guruwar Peth, ]
Satara-415002. ]...Defendants
Appearance :
Ld. Advocate Mr. Ramesh Jain for plaintiff.
Defendant absent (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 18-09-2023
JUDGMENT
( Dictated and pronounced in open Court)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC)for recovery of amount of
Rs.1,78,116.22. Brief facts of the plaintiff’s case may be summarized as
under:
2. The plaintiff is a registered company. Defendant No.1 is a
firm and defendant No.2 is a sole proprietor of defendant No.1. Upon
the defendant's orders and instructions, the plaintiff sold, supplied and
delivered the goods to the defendant and accordingly invoice
No.000990 dated 29-10-2018, amounting Rs.1,44,456/- was raised on
the defendant. The defendant never raised any dispute or protest
regarding the quantity, quality and/or rate of the same. Despite of
receiving the goods by the defendant, he defaulted and delayed in
making payments against the aforesaid invoice on the ground of
financial difficulties
3. According to the plaintiff, time and again demanded the
amount due under the invoice and accrued interest from the defendant.
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Thereafter, defendant issued a cheque No.000351 dated 23-05-2019,
amounting to Rs.1,44,456/- drawn on HDFC Bank, Sadar Bazar, Satara-
415001 in favour of the plaintiff. The said cheque on being presented
to the Bank for payment, has been dishonored. Therefore, the plaintiff
issued the demand notice dated 04-10-2019 through its advocate and
called upon the defendant to pay the amount of Rs.1,44,456/- and
thereon accrued interest @ 21% p.a. In spite of receipt of notice, the
defendant failed and neglected to pay the amount. Hence, the present
suit.
4. The defendant was served with the writ of summons. The
plaintiff has filed affidavit of service at Exh.5. Despite the service, the
defendant has not caused appearance and therefore, the suit proceeded
ex-parte against him by the order dated 06-01-2022.
5. In support of claim, the plaintiff filed its affidavit of claim
of Haresh M. Shah, the Constituted Attorney of the plaintiff at Exh.6
and reiterated its contention for recovery of Rs.1,78,116.22 along with
the further interest at the rate of 21% p.a. The plaintiff has filed and
relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.8 Invoice dated 29-10-2018
2 Exh.9 Cheque dated 23-05-2019
3 Exh.10 Plaintiff's advocates' letter dated 04-10-2019
alongwith postal records
6. To decide the present suit, following points arose for the
consideration to which my findings are recorded against each of them
for the reasons given below:
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Sr. No. Points/Issues Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.1,78,116.22
ps. from the defendant?
If yes, at what rate interest?
Partly yes.
Entitled to recover an
amount of Rs.1,44,456/-
from the defendant along
with interest at the rate of
Rs.9% p.a. from 20-12-2019
till its full realization.
2. What order and decree? As per final order.
REASONS
As to points No.1 & 2:
7. The plaintiff has filed its claim affidavit in support of the
case set out in the plaint at Exh.6 and also placed on record some
documents as referred to above. Evidence on affidavit placed on record
by the plaintiff supports to its case that the defendant had placed an
order with the plaintiff for purchasing the goods, and in accordance
with the said order, the plaintiff supplied the goods to the defendant
and the plaintiff had raised the invoice dated 29-10-2018 for the
amount of Rs.1,44,456/-. It is also found that the plaintiff had issued
the legal notice dated 04/10/2019 through the advocate and it is duly
served on the defendant. Despite the service of the said notice and
calling upon the defendant to clear off the outstanding dues, the
defendant neither paid amount nor replied the said notice. Evidence of
the plaintiff remained unrebutted and unchallenged. Therefore, there is
no reason to disbelieve the evidence of the plaintiff particularly when it
is supported by the documents. Therefore, I hold that the plaintiff has
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5 Sum Suit No.102/2020
proved that it is entitled to recover the amount of Rs.1,44,456/-.
8. It may be seen that the plaintiff has claimed the interest
Rs.33,660.22 at the rate of Rs.21% p.a. on the principal amount of
Rs.1,44,456/- from 08-11-2018, till filing the suit. Thus, according to
the plaintiff, he is entitled to total amount of Rs.1,78,116.22. However,
it is important to note that there appears no agreement to pay the
interest on the outstanding amount. Mere note on the invoice about
charging the interest on the delay payment is not sufficient to cast the
liability on the defendant to pay the same. Furthermore, when the
defendant had given the cheque to the plaintiff for the repayment of
amount of invoice, interest amount was not included, and the plaintiff
had received the said cheque as repayment of outstanding dues.
Therefore, I am of the view that the plaintiff cannot be made entitled to
the interest till filing the suit. However, having regard to the fact that
transaction between the plaintiff and the defendant was of the
commercial in nature, I am of the view that plaintiff can be made
entitled to the further interest. However, further interest claimed by the
plaintiff appears to be excessive and therefore, I hold that the plaintiff is
entitled to further interest at the rate of Rs.9% p.a. from 20-12-2019, a
date of filing the suit till its full realization and accordingly I answer
point No.1. In the result, in an answer to point No.2, I proceed to pass
the following order.
O R D E R
1] The Summary suit No. 102 of 2020 is partly decreed with costs.
2] The defendant shall pay the amount of Rs.1,44,456/-(Rupees One
Lakh, Forty Four Thousand Four Hundred and Fifty Six only) to
the plaintiff along with interest at the rate of Rs.9% p.a. from
20-12-2019, the date of filing of the suit till its full realization.
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3] The plaintiff is entitled to get refund 2/3rd court fees paid by it.
4] Decree shall be drawn accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 18-09-2023 Court Room No.61
Dictated on : 18-09-2023
Signed on : 21-09-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25-09-2023 at 1.45p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
18-09-2023
JUDGMENT/ORDER signed by P. O. on 21-09-2023
JUDGMENT/ORDER uploaded on 25-09-2023
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