Plaintiff filed suit for recovery against defendant who failed to appear after service of summons. Court found sale and delivery established via contracts, invoices, and receipts. Plaintiff was granted ex-parte decree under Order 37 of CPC.
Decree for Rs.1,07,03,435 with 18% interest and costs of Rs.2,50,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1/6
13-comss-1477-2018 J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUMMARY SUIT NO. 1477 OF 2018
MAHINDRA AGRI SOLUTIONS LIMITED ] (formerly known as Mahindra & Mahindra ] Limited - Agri business) ] Having registered office at Mahindra Towers, ] Dr. G.M. Bhosale Marg, P.K. Kurne Chowk ] Worli, Mumbai – 400 101 ] Through Mr. Shyam Vembar, ] Constituted Attorney ].. Plaintiff Vs. RAM PAVANKUMAR BIYANI ] (Proprietor of M/s. Ram Pavankumar Biyani ] Having address at Shop No. 6, ] New Mondha, Udgir, ] Maharashtra – 413 517. ].. Defendant
Ms.Pooja Singh a/w. Ms. Deepika Prabhala for plaintiff.
None for defendant.
CORAM : N.J. JAMADAR, J. DATE : 14TH FEBRUARY 2020
ORAL JUDGMENT :
of a sum of Rs.1,07,08,713/- along with interest @ 18% per annum from the date of the suit till realization, based on the sale and delivery of the goods evidenced by the contract of sale, invoices and delivery receipts.
Shraddha Talekar PS
2/6
13-comss-1477-2018 J.doc
(A) The plaintiff is a company registered under the Companies Act, 1956. It deals in the business of procurement and sale of pulses, peas and other edible goods. The defendant is the proprietor of M/s.Ram Pavankumar Biyani, a proprietorship concern. The defendant is also engaged in the business of purchase and sale of edible goods, on retail basis. The defendant had approached the plaintiff to supply the yellow peas and chick peas. The contracts for sale were executed on 18-07-2017, 16-08-2017 and 21-08-2017 (Exh.’B’ to the plaint) containing the description of the goods to be sold, price thereof, terms of payment, the terms of delivery and the special terms as to payment of interest in the event of default and jurisdiction in the event of dispute. It was, inter-alia, agreed that the defendant would pay 10% of the price of the goods by way of advance, and 90% at the time of acceptance of the delivery of the goods.
[B] In pursuance of the aforesaid contract and the
Shraddha Talekar PS
3/6
13-comss-1477-2018 J.doc
promise of the defendant to pay the price of the goods, the plaintiff sold and delivered the goods over a period of time by raising 27 invoices from 18-01-2018 to 1002-2018 for a total price of Rs.1,07,03,435/-. The invoices (Exh.’C’ Colly.) also contain the material terms of the contract; inter-alia, the specifications of the goods, the price thereof, the terms of delivery etc. The delivery of goods to the defendant was evidenced by the lorry receipts. The defendant did not raise any dispute about the delivery or quality of the goods. The plaintiff has mentioned ledger account of the defendant. A sum of Rs.1,07,03,435/- remained outstanding.
[C] The plaintiff repeatedly called upon the defendant to pay the outstanding amount, but to no avail. Hence, the plaintiff addressed a demand notice on 09-04-2018 calling upon the defendant to pay a sum of Rs. 1,07,03,435/- along with interest @ 18% per annum. The notice was duly served on the defendant on 16-04-2018. The defendant failed to comply with the demand. Hence the suit.
Shraddha Talekar PS
4/6
13-comss-1477-2018 J.doc
[D] The writ of summons was served on the defendant on 17-01-2019. An affidavit of service came to be filed by Mr. Rajkumar J. Tiwari, Bailiff Clerk in the office of Sheriff on 20-02-2019. The service of the writ of summons is vouched for by the affidavit of service.
[E] By an order dated 03-06-2019, this Court recorded that the writ of summons was duly served on the defendant and yet, the defendant did not enter appearance. The plaintiff was directed to file the original documents and the matter was directed to be listed for passing ex-parte decree.
Shraddha Talekar PS
5/6
13-comss-1477-2018 J.doc
description of the goods, the price thereof, the terms of payments, delivery etc. The further claim of the plaintiff that the plaintiff, in pursuance of the sales contract, had supplied the goods to the order of the defendant by raising various invoices finds requisite support in the 27 invoices raised from 18-01-2018 to 10-2-2008. The terms of the contract are also reflected with sufficient particulars in the said invoices. The delivery of the goods is evidenced by the lorry receipts placed on record. The material on record, thus, substantiates the claim of the plaintiff of the sale and delivery of the goods.
Shraddha Talekar PS
6/6
13-comss-1477-2018 J.doc
contract to pay price thereof beyond the pale of controversy, there is no other go but to decree the suit.
O R D E R
(ii) The defendant do pay a sum of Rs.1,07,03,435/along with interest @ 18% per annum from the date of the suit till realization.
(iii) The defendant do pay costs of Rs.2,50,000/-, to the plaintiff, quantified under Section 35 of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015.
(iv) The plaintiff is also entitled to refund of Court fees in accordance with the rules.
(vi) The Commercial Suit stands disposed of in above
terms.
[ N.J. JAMADAR, J. ]
Shraddha Talekar PS
2 issues framed by the court
Whether the suit for recovery of price for goods sold and delivered falls within the ambit of Order 37 of the Code of Civil Procedure given the defendant's failure to appear.
Whether the plaintiff is entitled to an ex-parte decree based on the defendant's failure to enter appearance after service of writ of summons.
2 provisions across 1 enactments
N.J. JAMADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
