1 s-4432 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 4432 OF 1999. Shreeji Transport Services (P) Ltd., (Previously Shreeji Transport Corporation), a Company incorporated under the Companies Act, 1956, having its registered office in Shop No.1, Ratan Palace, Garodia Nagar, Ghatkopar (East), Mumbai-400 077. ..Plaintiff. vs. Amar Ferro Metal (P) Ltd., a Company incorporated under the Companies Act 1956, having its office at 12, Niraj Industrial Estate, Off Mahakali Caves Road, Andheri (East), Mumbai-400 093. ..Defendant. .... Ms. Leena R. Temkar, for Plaintiff. None for Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 24TH MARCH 2011. JUDGMENT : By this Suit, the Plaintiff prays for an order and decree against the Defendant to pay to the Plaintiff a sum of Rs.4,07,609.04 with further interest on Rs.2,62,128/- at the rate of 18% per annum from the date of filing of the Suit till payment and or realisation. Though the Writ of Summons is served on the Defendant and an Affidavit of Service to this effect dated 21st December 1999 is filed in Court, the Defendant has not filed its written statement and none appear for the Defendant. The Suit therefore by an order dated 30th November 2006 is transferred to the list of undefended Suits and has 2 s-4432 now appeared on board under the caption ‘For Ex-parte Decree’. 2. Shri Mahendra Chhabildas Shah, Director of the Plaintiff Company has filed his Affidavit in lieu of Evidence dated 7th March 2011. The said Affidavit is taken on record and marked ‘X’ for identification. 3. It is stated in the Plaint as well as in the Evidence as follows :- 4. The Plaintiff rendered its transportation services to the Defendant and a sum of Rs.2,62,128/- became due and payable by the Defendant to the Plaintiff being the balance transportation charges against the bills as stated in para 3 of Affidavit of Evidence as well as in letter dated 18th July 1995 Exhibit ‘A’ to the Plaint. The copies of the aforesaid bills are produced before this Court by Mr. Shah. Mr.Shah has deposed that the bills were prepared by the then Accountant of the Plaintiff Shri Rajan. Mr. Shah has deposed that he is familiar with the signature of Shri Rajan and identifies the same. The said bills are taken on record and marked Exhibit ‘P-1’ Colly. 5. The Plaintiff by its letter dated 18th July 1995 called upon the Defendant to make payment of the balance dues of Rs. 2,61,828/- to the Plaintiff. The letter dated 18th July 1995 bears the signature of Shri Naresh C. Shah, one of the then parter, now Director of the Plaintiff. Mr. Shah had deposed that he is familiar with the signature of Shri Naresh Shah and identifies the same. The letter dated 18th July 1995 is taken on record and marked Exhibit ‘P-2’. 3 s-4432 6. According to the Plaintiff, the Defendant did not respond to the said letter. The Plaintiff therefore through its Advocates notice dated 21st June 1996 called upon the Defendant to make the said payment of Rs.2,62,128/- together with interest thereon. The said notice is taken on record and marked Exhibit ‘P-3’. The said notice was replied to by the Defendant through its Advocate’s letter dated 16th July 1996 acknowledging the Plaintiff’s claim but falsely stated that since one of the group concerns of the Plaintiff has filed a Criminal Complaint against the Plaintiff, Mr. Narendra Shah had requested and asked the Defendant not to pay any sum to the Plaintiff and adjust the said sum against their firm’s liability to the Defendant’s group concerns. A copy of the said letter dated 16th July 1996 is taken on record and marked Exhibit ‘P-4’. The Plaintiff once again sent a final reminder notice dated 23rd July 1996 through its Advocates and called upon the Defendant to remit the payment of Rs. 2,26,128/-. The said letter dated 23rd July 1996 is taken on record and marked Exhibit ‘P-5’. Since the Defendant failed to pay the said amount, the Plaintiff filed the above Suit for recovery of amount of Rs.4,07,609.04 as per the particulars of claim annexed as Exhibit ‘E’ to the Plaint with further interest at the rate of 18% per annum on Rs.2,62,128/- from the date of filing of the Suit till realisation and for costs. 7. I have gone through the averments made in the Plaint and also the Evidence along with compilation of Documents filed by the Plaintiff. From Exhibit ‘P-1’ Colly., it is established that the Plaintiff rendered its transportation services to the Defendant and 13 bills aggregating to Rs.2,62,128/- were raised by the Plaintiff on the Defendant. Exhibit ‘P-2’ shows that the Plaintiff by its letter dated 18th July 1995 called upon the Defendant to make payment of the 4 s-4432 said balance dues of Rs.2,61,828/- to the Plaintiff. According to the Plaintiff, the Defendant did not respond to the said letter. Exhibit ‘P-3’ shows that the Plaintiff through its Advocate’s letter dated 21st June 1996 called upon the Defendant to make the said payment of Rs.2,62,128/- together with interest thereon. The Defendant through its Advocate’s letter dated 16th July 1996 (Exhibit ‘P-4’ acknowledged the Plaintiff’s claim. However, the Defendant alleged that Shri Narendra Shah had requested and asked the Defendant not to pay any sum to the Plaintiff and adjust the said sum against their firm’s liability to the Defendant’s group concerns. This contention of the Defendant which is denied and disputed by the Plaintiff cannot be accepted since the Defendant except making a bare allegation has not provided any particulars nor has the Defendant come forward to prove the said allegation. The Plaintiff immediately sent its Advocate’s notice dated 23rd July 1996 (Exhibit ‘P-5’) once again calling upon the Defendant to remit the payment of Rs.2,26,128/- together with interest to which there was no response from the Defendant. Since the Defendant failed to pay the said amount, the Plaintiff has filed the above Suit for recovery of amount of Rs. 4,07,609.04 as per the particulars of claim annexed as Exhibit ‘E’ to the Plaint with further interest at the rate of 18% per annum on Rs. 2,62,128/- from the date of filing of the Suit till realisation and for costs. Though the Writ of Summons is served on the Defendant and the Affidavit of Service dated 21st December 1999 is filed in Court, the Defendant has not filed his written statement and not come forward to defend the Suit. In view thereof, what is stated by the Plaintiff has gone unchallenged. There is no reason why what the plaintiff has stated in the Plaint as well as in the Affidavit of Evidence should not be accepted. 5 s-4432 8. In the above circumstances, in my view, the reliefs sought by the Plaintiff are required to be granted. In view thereof, I pass the following order :- (i) The Defendant is ordered and decreed to pay to the Plaintiff a sum of Rs.4,07,609.04 paise with further interest on Rs. 2,62,128/- at the rate of 18% per annum from the date of filing of the Suit till the payment and/or realisation. (ii) The Defendant shall pay costs of this Suit to the Plaintiff. (iii) Plaintiff will be entitled to refund of Court fees, if any, as per Rules. (iv) The Suit is accordingly disposed of in favour of the Plaintiff and against the Defendant. [ S.J. KATHAWALLA, J. ]