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1 Sum. Suit No.07/2018
Judg...Exh.17
Presented on : 22/02/2018
Registered on : 22/02/2018
Decided on : 11/01/2019
Duration : 00Y.10M.20D.
IN THE COURT OF JOINT CIVIL JUDGE J.D., KALYAN, DIST.
THANE.
( Presided over by Nilima A.Wankhade)
SUMMARY SUIT NO. 07/2018. Exh.No.17
CNR NO – MHTH080001402018
M/s.Bhagawati Industries
a proprietary concern of
M/s.Kumar Metals Pvt.Ltd.
Through its authorized Signatory
Mr.Banwarilal L. Bagaria
Age 69 years,Occu:Business,
having their factory at EF7,
Mini Indl.Estate, Konkan Vikas,
Shahsput, Dist. Thane and Administrative
& Accounts Office at Shop No.3,
Sai Sankul Annex, Barave Road,
Khadakpada , Kalyan(W),Dist.Thane. ….. Plaintiff.
V/s.
M/s.Stallion Impex
a Proprietary concern through its Proprietor
Mr.Chintan Pradip Shah,
Adult, Occu.Business,
having their Principal Place of business
at A1, Lotus Building,
Whispering Medows, Model town,
Near Ganesh Temple off B.R.Road,
Mulund(W), Mumbai400 080. .....Defendant.
Ld. Adv. Shri. Z.N.Kazi for the plaintiff.
Exparte against the defendant.
..2.. Sum. Suit No.07/2018
Judg...Exh.17
: J U D G M E N T :
(Delivered on 11th day of January, 2019 )
1] This is a suit for recovery of Rs.48,560/ and interest
thereon under Order XXXVII of The Code of Civil Procedure, 1908
2] In short, the plaintiff is a proprietary concern of M/s.
Kumar Metals Pvt.Ltd., a company registered under the Companies
Act, 1956 engaged in manufacturing quality adhesive powder and
industrial dextrine. The defendant is a proprietary concern dealing in
manufacturing of corrugated boxes and allied works. Both were having
business terms as defendant was purchasing various materials such as
modified starch powder from the plaintiff. The defendant was irregular
in clearing his dues on time, which were due and liable to pay to
plaintiff for materials supplied to him. Hence, the plaintiff had
discontinued all the transactions with him. Thereafter, the defendant has
visited the office of the plaintiff and showed his interest to continue the
business with the plaintiff. The plaintiff restarted business transaction
believing the commitment of defendant and having faith on his words
that he will do business with the plaintiff with honestly and clear all his
dues within 45 to 60 days from the date of supply of material.
3] The defendant placed order of starch powder weighing
about 590 kg. amounting to Rs.24,019/ including C.G.S.T. and
S.G.S.T. on 05/07/2017. The defendant assured to clear dues as per
present bill within 15 days of receipt of goods. Accordingly, plaintiff
3 Sum. Suit No.07/2018
Judg...Exh.17
delivered the goods to the defendant. Despite of delivery of goods to
the defendant , he failed to pay bill amount. On 23/08/2017 again
defendant approached to the plaintiff and assured the plaintiff that he
would pay previous bill along with new order he is going to place. The
plaintiff again fell prey to defendant and delivered 40 kg. Modified
starch powder for the amount of Rs. 19,541/ including C.G.S.T. and
S.G.S.T. Accordingly, the goods were delivered to the defendant. The
defendant again failed to repay outstanding bill. Considering continuous
default of the defendant, plaintiff issued reminder letters dt 28/09/2017,
24/10/2017 & 03/11/2017 and 27/11/2017 to the defendant about
outstanding amount. Despite of letters defendant failed to make
payment. Finally, plaintiff issued notice on 06/01/2018 and demanded
outstanding amount of bills dated 05/07/2017 and 23/07/2017. He also
asked for Rs.5000/ towards the expenses of the notice. Despite of
notice defendant failed to make repayment of outstanding amount.
Hence, present suit is filed for the recovery of 43,560/ alongwith
interest @ 25% p.a. and Rs.5000/ towards notice chages.
4] Despite of service of summons the defendant failed to
appear and to take leave to defend. The suit is proceeded exparte
against the defendant.
5] Following point, therefore arise for consideration and
findings are recorded thereon with reasons as under :
..4.. Sum. Suit No.07/2018
Judg...Exh.17
SR.No. POINT FINDING.
1. Whether the plaintiff proved that the
goods worth Rs. 43,560/ are supplied to
the defendant on credit ?
Affirmative
2. Is plaintiff entitled to recover amount
alongwith interest @ 24% p.a. thereon
from the defendant?
Affirmative.
3. What order and decree ? Suit is decreed
with costs.
:REASONS :
POINT NO.1 AND 2:
6] Plaintiff Banwarilal has examined himself as (P.W.1) vide
Exh.6. Besides the plaintiff has relied on documents (Exh.9 to 16). As
against this, the defendant failed to adduce any evidence.
7] In sum and substance plaintiff (P.W.1)deposed that it is a
company registered under the companies Act and it had business term
with the defendant. The defendant placed order on 05/06/2017 and
23/08/2017 in respect of starch powder. On the assurance of defendant
that he would pay entire bill amount, plaintiff delivered the goods.
Despite of repeated demand, the defendent failed to pay amount of Rs.
24,019/ & Rs.19,541/. Plaintiff issued reminder letters on 28/09/2017,
24/10/2017, 3/11/2017 & 27/11/2017, but the defendant avoided to
make payments. Finally, plaintiff issued notice on 06/1/2018. The
defendant failed to pay bill amount. The evidence of plaintiff remains
unrebutted on record.
5 Sum. Suit No.07/2018
Judg...Exh.17
8] The case of the plaintiff is based on documentory evidence,
hence, relevant documents need to be looked into. Tax invoice Exh.9
and Exh.11 go to show that the defendant placed order of modified
starch powder on 05/07/2017 and 23/08/2017. Accordingly, plaintiff
delivered the goods to the defendant vide invoice No.G8 Exh.10 &
Exh.12. Notice Exh.14 and receipt Exh.15 demonstrate that the
plaintiff issued notice to the defendant and demanded the outstanding
amount. Despite of notice defendant failed to pay outstanding amount.
9] The oral and documentary evidence on the point of non
payment of outstanding amount by the defendant has not been subjected
to cross examination. Therefore, it remained unchallenged on record.
So, it stands proved that the plaintiff supplied goods Rs. 43,560/ on
credit. On the other hand the defendant failed to adduced any evidence
to show that he infact cleared the dues to the plaintiffs.
10] The plaintiff on the strength of oral and documentary
evidence succeeded in proving that it is entitled to claim the said
amount. Now the point is what is the agreed rate of interest. Tax invoice
Exh.11 shows that the interest rate @ of 24% will be charged on
overdue payment. The said interest is also not denied by the defendant.
Therefore, plaintiff is entitled for interest as agreed. The plaintiff is
also entitled to costs of the suit. Considering all the above facts, I
answer point nos.1 and 2 in affirmative.
..6.. Sum. Suit No.07/2018
Judg...Exh.17
POINT NO.3:
In result, I pass following order.
ORDER
1] The suit is decreed with cost.
2] The defendant do pay Rs.43,560/(Rs. Forty three
Thousand Five Hundred Sixty Only) to the plaintiff
alongwith interest @24%p.a. from the date of suit
till its realization.
3] Decree be drawn up accordingly.
Kalyan. ( Nilima A.Wankhade )
Date : 11/01/2019 Jt. Civil Judge, J.D., Kalyan.
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