Professional Documents
Culture Documents
129/2022 Judgment
Received on 21 04 2022
Registered on 21 04 2022
Decided on 04 11 2023
Duration 14 06 01
DD MM YY
V E R S U S
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-::J U D G M E N T ::-
[1] The present suit has been filed by the plaintiff for recovery of
Rs.4,33,410/- along with interest thereon. Brief facts of the
plaintiff’s case are as under:-
That the plaintiff is a proprietorship firm engaged in business of
selling Textile fabrics with the name of Siddheshwar Texo Fab.
The defendant No. 1 is proprietorship firm and defendant No. 2
conducts business at above mentioned address. The defendant
approached the plaintiff through agent Hanuman Gangaram
Chaudhary and presented himself as leading businessman and also
having other firms on large scale and requested to start business
on conditions of timely payment, if failing of which he is ready to
pay interest at the rate of 18% p.a. on the outstanding amount.
Hence, initially the defendant placed the order from January-2020
to February-2020 from the plaintiff vide 11 different bills, to
worth of Rs.4,37,814/- and after receiving the said goods, the
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[3] In this matter, defendants have not appeared before this Court
and as such there is no any written statement, there is no contest
from the defendant side. Therefore, it would be appropriate to
refer some of provisions relating to non filing of Written
Statement / Evasive denial by the defendants. "Order 8 Rule 3A.
Denial by the defendant in suits before the Commercial Division
of the High Court or the Commercial Court-
1. Denial shall be in the manner provided in sub-rules (2), (3),
(4)and (5) of this Rule.
2. The defendant in his written statement shall state which of the
allegations in the particulars of plaint he denies, which
allegations he is unable to admit or deny, but which he
requires the plaintiff to prove, and which allegations he
admits.
3. Where the defendant denies an allegation of fact in a plaint,
he must state his reasons for doing so and if he intends to put
forward a different version of events from that given by the
plaintiff, he must state his own version.
4. If the defendant disputes the jurisdiction of the Court he must
state the reasons for doing so, and if he is able, give his own
statement as to which Court ought to have jurisdiction.
5. If the defendant disputes the plaintiff's valuation of the suit, he
must state his reasons for doing so, and if he is able, give his
own statement of the value of the suit."
Order 8 Rule 5 "Specific denial"
1. Every allegation of fact in the plaint, if not denied specifically
or by necessary implication, or stated to be not admitted in
the pleading of the defendant, shall be taken to be admitted
except as against a person under disability :
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[4] Therefore, when the defendant has filed the written statement, the
Court has ample powers to pass the decree on the basis of
evidence produced by the plaintiff. The Court is also empowered
to call for the plaintiff to produce his evidences and prove his
case. In this case also considering fact of the case find proper to
frame issue and call plaintiff to produce his evidences.
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: ISSUES :
1. Whether the plaintiff proves that they were having business
relationship with the defendant and an amount of
Rs.4,33,410/- is outstanding for towards principal and
interest as alleged in the plaint ?
2. Whether the plaintiff proves that defendants have issued
two cheques of Rs. 20,000/- each and the same were
returned unpaid ?
3. Whether defendants proves that blanks cheques were issued
for security as alleged in written statement ?
4. Whether plaintiff is entitled to any relief or reliefs as
claimed in the plaint?
5. What order and decree?
[6] The findings of this Court for the above-mentioned issues are as
follows:-
1. In the Partly Affirmative.
2. In the Affirmative.
3. In Negative.
4. In the Affirmative.
5. As per final order.
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1. 23 Power of attorney.
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:: R E A S O N S ::
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[AIR 2003 SC 2508] in which it has been held that even if the
suit proceeded ex-parte and in the absence of a written statement,
unless the applicability of Order 8 rule 10 of the code of Civil
Procedure is attracted and the court acts thereunder, the necessity
of proof by the plaintiff of his case to the satisfaction of the court
cannot be dispensed with. In the absence of denial of plaint
averments the burden of proof on the plaintiff is not very heavy.
A prima facie proof of the relevant facts constituting the cause of
action would suffice and the court would grant the plaintiff such
relief as to which he may in law be found entitled. In a case
which has proceeded ex-parte, the court is not bound to frame
issues under Order 14 of the Code of Civil Procedure and deliver
the judgment on every issue as required by Order 20 Rule 5 of
the Code of Civil Procedure. Yet the trial court would scrutinize
the available pleadings and documents, consider the evidence
adduced, and would do well to frame the “points for
determination” and proceed to construct the ex-parte judgment
dealing with the points at issue one by one. Merely because the
defendant is absent, the court shall not admit evidence and the
admissibility whereof is excluded by law nor permit its decision.
So as per this pronouncement of the Hon'ble Apex Court, the
necessity of the plaintiff to prove his case is not lost even if the
matter has been proceeded ex-parte.
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ISSUES No. 1 :-
[9] Plaintiff came with pla that Plaintiff having business relationship
with the defendant and an amount of Rs.4,33,410/- is outstanding
for towards principal and interest as alleged in the plaint.
Plaintiff Mr. Ashokbhai Madhubhai Sojitra vide Exh.17 his Chief
examination on Affidavite as per Order 18 Rule 4 of CPC and
stated that That the plaintiff is a proprietorship firm engaged in
business of selling Textile fabrics with the name of Siddheshwar
Texo Fab. The defendant No. 1 is proprietorship firm and
defendant No. 2 conducts business at above mentioned address.
The defendant approached the plaintiff through agent Hanuman
Gangaram Chaudhary and presented himself as leading
businessman and also having other firms on large scale and
requested to start business on conditions of timely payment, if
failing of which he is ready to pay interest at the rate of 18%
p.a. on the outstanding amount. Hence, initially the defendant
placed the order from January-2020 to February-2020 from the
plaintiff vide 11 different bills, to worth of Rs.4,37,814/- and after
receiving the said goods, the defendant assured the quality,
quantity and conditions of goods and he had no objection
regarding quality and the quantity. After completion of stipulated
time and consistent persuasion by plaintiff defendant issued two
cheques total amounting of Rs.40,000/- as part payment by
accepting liabilty of said delivered and accepted goods. However,
the same cheques were dishonored with reason “funds
Insufficient” and the defendant requested plaintiff not to take any
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[10] The plaintiff has produced the documentary evidences vide Exh.
23 to 51, Partnership deed of plaintiff’s firm with registration
certificate at Exh. 24, GST certificate of plaintiff’s firm at Exh. 25
and Power of attorney at Exh. 23. Online G.S.T. statement of
defendant. Exhibit 25 is GST registration certificate. Exhibit 27 to
34 are the invoices and transport receipts of goods delivered to
the defendant. Exh. 47 is the certified ledger accounts of
defendant with outstanding report which shows that Rs.3,19,329/-
is outstanding against the defendant. The evidences tendered by
the plaintiff has remained unchallenged and hence, from these
oral as well as documentary evidences, it is proved on record that
an amount of Rs.3,19,329/- was outstanding from the defendants
towards the sale of the goods.
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[13] It is also case of plaintiff that defendants have issued two cheques
of Rs. 20,000/- each and the same were returned unpaid. At the
same time it is defence of defendant that he has issued blanks
cheques for security purpose only not towards any liability.
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[15] But defendant has rise defence that M/s Adhunik Corporation
never issued cheque in favour of plaintiff and on which cheques
plaintiff relies, issued by Praksh Mangilal on his personal capacity
So plaintiff have not get benefit of cheque issued by defendant
no. 2 against defendant no.1. Further it was also rised defence
that defendant no. 2 has issued cheque as security purpose only,
which cheques were misused by plaintiff.
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[17] According to Section 101 of the Indian Evidence Act, 1872, the
plaintiff has the initial burden of proving a prima facie case in his
favour. Once the plaintiff presents evidence to support a prima
facie case in his favour, the defendant is then required to present
evidence to the court of law that supports the plaintiff’s case. The
burden of proof may return to the plaintiff as the case develops.
The following presumptions the following presumptions shall be
made:- of consideration, as to date, as to time of acceptance, as
to time of transfer, as to order of indorsements, as to stamp, that
holder is a holder in due course shall be made unless the contrary
is shown, according to Section 118 of the Negotiable Instruments
Act of 1881.
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[19] Even, to prove his defence defendant not step into witness box.
So. Plaintiff’s evidence remain unchallenged. when defendant
came with special defence it is duty and burden of defendant to
prove his defence. But discussed earlier defendant failed to prove
his defence and there is nothing on record with creat doubt on
case of plaintiff. This court of the opininon that plaintiff
succeeded to prove that After completion of stipulated time and
consistent persuasion by plaintiff defendant issued two cheques
total amounting of Rs.40,000/- as part payment by accepting
liabilty of said delivered and accepted goods. However, the same
cheques were dishonored with reason “funds Insufficient”. where
as defendant no.1 failed to prove that On which cheque plaintiff
relying, has been issued as security purpose and also failed to
prove that they have not liable to make payment for cheque
issued by defendant no.2. So, Issue no. 2 reply in
Affirmative and Issue no. 3 reply in Negative.
ISSUES No. 4 :-
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[21] As regards the interest, the plaintiff has calculated the interest at
the rate of 18% per annum and has demanded the same. As per
Order VII Rule 2 (A) of the amended CPC for the commercial
suits, it is mandatory for the plaintiff to provide the details of the
interest claimed.
34. INTEREST :
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The plaintiff has calculated the interest at the rate 18% per
annum for the pre-suit period and for that, it has been pleaded
that the bill is containing a stipulation that payment shall be
made by the due date failing which interest at the rate of 18%
per annum shall be charged. In this bill no any specific due date
is mentioned and no clear evidence is there. Moreover, there is
no any specific written contract between the parties from which,
it can be said that the defendants liable for such interest. No any
custom or usage has been proved on record regarding the rate of
interest and the plaintiff is not entitled to interest at the rate of
18% per annum.
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[25] In view of the above decisions, it is very much clear that the
Court is empowered to grant pre-suit interest. It is also very much
clear that when the interest alleged to have been claimed is
unnecessarily excessive, is violative of public policy the Court is
well within its jurisdiction to grant just and proper pre-suit
interest. In this case, the plaintiff has calculated the pre-suit
interest at the rate of 18% per annum but the same is not the
agreed rate of interest and no such custom is proved and hence,
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Signed and Pronounced in this open court on this 04th day of November
month of year 2023.
Dt. 04/11/2023
Surat. (N. G. Parmar)
3rd Additional Senior Civil Judge,
[ Commercial Court ]
Surat.
Judge Code: GJ00869
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