Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: Judgment in
S. C. Suit No.447 of 2022 Exh. 30
MHCC010136912019
Lodged on :18/12/2019
Registered on :18/01/2020
Decided On :26/07/2022
Duration :2Y:07M:08D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.447 OF 2022
Exh. 30.
1. Dr. Ritesh Ramkumar Gupta ]
Age.: 43 years, (Plastic Surgeon) ]
Residing at : 2/12, Ambika Niwas, ]
Shyam Nagar, Jogeshwari (East), ]
Mumbai – 400 060. ]
2. Dr. Amit Vinayak Patil. ]
Age: 44 years, (Plastic Surgeon) ]
Residing at : Flat No. 09, Dhanvantari 1, ]
J.J. Hospital, Byculla, ]
Mumbai – 400 008. ] .... Plaintiffs
V/s
1.The Platinum Hospital ]
G103, The Color Scape Shopping Mall, ]
D.D.Upadhayay Marg, Near Mulund Check Naka, ]
Mulund (West), Mumbai, Maharashtra – 400 080.]
2. Dr. Anuj Bhasin ]
MD.DM.(Cardiology) ]
Hospital Administrator, Platinum Hospital ]
G13, The Color Scape Shopping Mall ]
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D.D. Upadhyay Marg, Near Mulund Check Naka ]
Mulund (West), Mumbai , Maharashtra 400 080. ]
3. Dr. Bijoy Kutty ]
Medical Director M.S. M.Ch (CTVS) ]
Hospital Administrator, Platinum Hospital, ]
G103, The Color Scape Shopping Mall, ]
D.D. Upadhayay Marg, Near Mulund Check Naka ]
Mulund (West), Mumbai , Maharashtra 400 080 ]
4. Dr. Sanjit Paul ]
Hospital Administrator, Platinum Hospital ]
G103, The Color Scape Shopping Mall ]
D.D.Upadhayay Marg, Near Mulund Check Naka, ]
Mulund (West), Mumbai, Maharashtra 400 080. ]….Defendants
Appearance:
Adv. Pradeepkumar L. Pardeshi for the plaintiff.
Defendant Exparte.
SUIT FOR RECOVERY OF MONEY
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 26/07/2022
JUDGMENT
The suit for recovery of amount of Rs. 5,60,000/
alongwith interest.
Case of the plaintiffs in nutshell is as under :
2. The plaintiffs are practicing doctors as plastic surgeon and
are M.Ch. from LTMMC, Sion, Mumbai and also Specialist residents
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from TATA Memorial Hospital, Parel, Mumbai. They have expertise in
reconstruction in Trauma and Cancer related cases. Defendant No.1 is a
Platinum MultiSpecialty Hospital. Defendant No.2 is M.D., D.M.
(Cardiology) Hospital Administrator. Defendant No.3 is Medical
Director M.S. M.Ch. (CTVs) Hospital Administrator and defendant No.4
is the CEO and Managing Partner (MBA) and looking after daytoday
affairs of defendant No.1Hospital.
3. Defendants had contacted the plaintiffs and under the
impression that plaintiffs would have good growth opportunities, they
started working with defendant No.1Hospital, as per offer/
appointment in the month of September 2016. Under mutual
understanding agreed with defendants, the work of plaintiffs was of
reconstruction of Trauma and Cancer cases in collaboration with
primary cancer Surgeon attached to defendant No.1. Accordingly,
plaintiffs treated 56 patients with an average of 8 to 10 hours of daily
visit for each patient. However, the management of defendant No.1
Hospital avoided dues towards the services rendered by the plaintiffs.
4. It is further the case of the plaintiffs that the cheques issued
by the defendants were dishonored. Despite of repeated requests,
defendants failed to pay due amount. Therefore, the plaintiffs ceased
the services to defendant No.1 Hospital from 02.02.2017. Plaintiffs are
entitled to receive outstanding dues of Rs. 5,60,000/ with interest at
the rate of 18% p.a. They made correspondence with defendants for
payment of the said amount and ultimately on 29.08.2016 issued final
demand notice to defendants. It was served upon the defendants. But
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they failed to comply the same. Defendants, jointly and severally, are
liable to pay outstanding amount with interest to the plaintiffs.
Therefore, the suit has been filed for recovery of the said amount.
5. Defendants are duly served with writ of summons but
failed to appear. Therefore, the suit proceeded exparte against the
defendants.
6. Following points arise for my determination to which
findings have been recorded for the reasons discussed below.
Sr. No. Points Findings
1. Whether plaintiffs prove that an amount of
Rs.5,60,000/ is due and outstanding from
the defendants towards the services
rendered by the plaintiffs to defendant
No.1 Hospital?
Yes.
(With reference to
plaintiff No.1 only)
2. Whether defendants are jointly and
severally liable to pay the aforesaid amount
to the plaintiffs? Yes.
(To plaintiff No.1 only)
3. Whether plaintiffs are entitled for interest
on above amount? If yes, at what rate?
Yes.
Interest at 6 % p.a.
4. What order and decree? As per final order.
R E A S O N S
As to Point Nos. 1 To 4:
7. Heard Ld. Adv Pradeep Kumar Pardeshi for plaintiffs.
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Perused written notes of arguments at Exh.29 submitted by the Ld.
advocate for the plaintiffs.
8. To prove the suit claim, plaintiff No.1 has filed his evidence
affidavit in lieu of examination in chief at Exh.9 and additional affidavit
of examinationinchief at Exh.21. In his affidavit, PW1 Dr. Ritesh
Ramkumar Gupta reiterated the entire pleadings in the plaint. All the
documents with List at Exh.10 are exhibited in the evidence of PW1.
Accordingly, these are admitted in the evidence.
9. Plaintiffs have relied upon the document at Exh.11 to
establish the fact that they were appointed to render services to
defendant No.1 Hospital. Document at Exh.11 is the letter issued by
the defendant No.3 in the capacity of Medical Director of defendant
No.1 Hospital to plaintiff No.1 intimating the decision of affiliation of
plaintiff No.1 with defendant No.1Hospital. On the basis of the above
document, it can be said that plaintiff No.1 was affiliated to defendant
No.1Hospital to perform responsibilities as plastic surgeon from
September 2016.
10. It is the case of the plaintiffs that pursuant to their
affiliation with defendant No.1Hospital, they treated 56 patients. They
have produced the copy of email dated 31.08.2017 sent by plaintiff
No.1 to defendants, consisting of the list of all the patients plaintiffs
operated and outstanding details in respect of the services rendered to
the hospital with regard to the said patients.
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11. Exh. 24 is the print out of email dated 26.03.2018 sent by
defendant No.1Hospital to plaintiff No.1 wherein they have undertaken
to make outstanding payment in first week of April 2018 (date
06.04.2018). Exh.25 is the print out of another email dated
13.04.2018 issued by plaintiff No.1 to defendant No.1Hospital
requesting the earlier payment of the outstanding amount.
12. The print outs of the emails adduced in evidence by the
plaintiffs are annexed with certificate (Exh.22) under Section 65B of
the Indian Evidence Act. P.W. 1 has filed additional evidence affidavit
and certificate at Exh.22 to prove the Emails at Exh.23 to 25.
Therefore, those print outs of emails are properly admitted and duly
proved in the evidence of the plaintiffs.
13. As regards the claim of the plaintiffs regarding the
treatment of the patients and outstanding dues towards the services
rendered by them to the hospital for treating those patients, the only
document available with the plaintiffs is the email dated 31.08.2017 at
Exh.23. Vide Email dated 26.03.2018 at Exh.24, defendant hospital
has undertaken to make the payment of outstanding amount. In the
said email, no dispute regarding the outstanding amount is raised.
Therefore, this document is an admission of the liability by the
defendants to pay the outstanding amount disclosed by the plaintiffs in
email at Exh.23.
14. Plaintiffs have also sent notice dated 09.09.2018 at Exh.12
to the defendants calling upon them to pay outstanding amount of Rs.
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5,60,000/ by giving description of the patients and the due amount in
the said notice. With the said notice, plaintiffs have annexed the details
regarding the services rendered by them for defendant No.1Hospital.
At Exh.13(colly) are the postal receipts, which indicate that the said
notices were posted on the addresses of the defendants. Whereas
Exh.14 (Colly) are the RPAD acknowledgments which show that the
notice was received by defendant No.1 Hospital.
15. At Exh.15, plaintiffs have produced the copy of notice
issued to the advocate for defendants which has reference of the letter
dated 04.06.2018 issued by the defendants. The reply dated
04.06.2018 filed by the defendants to notice (Exh.12) is not on record.
From the contents of the notice dated 29.08.2018 at Exh.15, it can be
noted that defendant No.4 had replied the earlier notice issued by the
plaintiffs, disputing the claim of the plaintiffs. In the letter at Exh.15,
plaintiffs called upon the defendants to clear outstanding due. Its
postal receipts are at Exh.16.
16. Document at Exh.17 is the final notice dated 29.08.2018
sent by the plaintiffs to all the defendants calling upon them to make
payment of the entire outstanding dues of Rs.5,60,000/ with interest at
the rate of 18% and compensation of Rs.10,00,000/. Its postal receipts
are at Exh.18(colly) and RPAD acknowledgment are Exh.19(colly). It
can be noted from the acknowledgments that defendant No.3 has
received the said notice.
17. The writ of summons is duly served upon the defendants.
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Despite of it, defendants opted not to appear and contest the suit claim.
Therefore, all the above oral and documentary evidence on record has
remained unchallenged. Email dated 26.03.2018 at Exh.24 is in the
form of admission. Therefore, by relying upon the said admission under
Section 58 of the Indian Evidence Act, the pending payment list with
printout of email dated 31.08.2017 at Exh.23 can be said to be proved.
Moreover, defendants, despite of receipt of demand notice dated
09.05.2018 (Exh.18) and final notice dated 29.08.2018 (Exh.17) have
not bothered to dispute the liability claimed the plaintiffs against them.
In these circumstances, the claim raised by the plaintiffs against the
defendants is sufficiently proved in the oral as well as documentary
evidence adduced by the plaintiffs.
18. So far as the claim of plaintiff No.2 is concerned, the letter
of affiliation at Exh.11 is issued only in the name of plaintiff No.1. The
email communications at Exh.23 to 25 are exchanged between the
plaintiff No.1 and defendants. There is no documentary evidence to
show that plaintiff No. 2 was affiliated to defendant No.1 Hospital or
that he rendered any service to the Hospital. Therefore, for the lack of
satisfactory evidence, it cannot be inferred that any amount is due from
defendants to the plaintiff No.2. However, the claim of plaintiff No.1
against defendants is sufficiently established in the above evidence.
19. Plaintiffs are claiming joint and several liability of all the
defendants. There is specific mention in the plaint that defendant No. 2
is M.D., Defendant No.3 is Medical Director and defendant No.4 is the
CEO and Managing Partner of defendant No.1 Hospital. In absence of
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any defence, the above pleadings have remained uncontroverted.
Therefore, all the defendants need to be fastened with joint and several
liability to pay the outstanding amount to plaintiff No.1.
20. As regards the interest claimed by the plaintiffs, they are
claiming interest at the rate of 18 % p.a. There is no basis to award said
interest on the outstanding amount. The interest claimed by the
plaintiff is exorbitant. Under Section 34 of the C.P.C., further interest at
the rate of 6% p.a. can be awarded. Therefore, point Nos.1 to 3 are
answered in the affirmative in respect of plaintiff No.1 only and
following order is passed :
ORDER
1. Suit No. 447 of 2022 is partly decreed with costs.
2. Defendant shall, jointly and severally, pay an amount of
Rs.5,60,000/ to plaintiff No.1 with interest at the rate of 6% p.a.
from the date of the suit till the realization of entire amount.
3. Decree be drawn up accordingly.
4. Suit No. 447 of 2022 is disposed off accordingly.
(S.B. Pawar)
Judge,
Dated: 26/07/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 26.07.2022
Dictated on : 26.07.2022
Transcribed on : 26.07.2022
Checked & Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.08.2022 at 12.05 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 26.07.2022
Order signed by P.O. on 26.07.2022
order uploaded on 04.08.2022
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