1 s-4308-99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 4308 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. METEC Asia (P) Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at 12/18, V.P. Road, Near Lad’s Vadi, C.P. Tank, Mumbai-400 004. ..Defendant. .... Mrs. 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.64,063/- with further interest at the rate of 18% per annum on the principal amount of Rs.41,199/- 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 19th April 2000 is filed and on 18th January 2000 Advocate Shri Suraj M. Shah filed his appearance on behalf of the Defendant in the above Suit, which is lying under objection till date, the Defendant has not filed 2 s-4308-99 its written statement and none appear for the Defendant. The Suit therefore by an order dated 1st December 2006 is transferred to the list of undefended Suits and has now appeared on board under the caption ‘Ex-parte Decree’. 2. Shri Narendra Chabildas Shah, Director of the Plaintiff Company has filed his Affidavit in lieu of Evidence dated 14th 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.41,199/- became due and payable by the Defendant to the Plaintiff being the balance transportation charges against the bill nos. 13160, 13161, 13162 and 13163, all dated 24th August 1994 for Rs.11,340/-, Rs.9,507/-, Rs.10,598/- and Rs.9,754/- respectively. 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 Mr. 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 and 27th December 1995 called upon the Defendant to make payment of the balance dues of Rs.41,199/- to the Plaintiff. The letter dated 18th July 2005 bears the signature of the Deponent. The letter dated 27th December 1995 bears the signature of Shri Raju Shah. At the 3 s-4308-99 relevant time, Shri Raju Shah and the Deponent were carrying on business in partnership firm which was subsequently converted into a Private Limited Company. Mr. Shah has deposed that he is familiar with the signature of Shri Raju Shah and identifies the same. The letters dated 18th July 1995 and 27th October 1995 are taken on record and marked Exhibit ‘P-2’ and Exhibit ‘P-3’, respectively. 6. According to the Plaintiff, the Defendant did not respond to the said letters. The Plaintiff therefore through its Advocates notice dated 21st June 1996 called upon the Defendant to make the said payment of Rs.41,199/- together with interest thereon. The said notice is taken on record and marked Exhibit ‘P-4’. 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, the partner of the Plaintiff Shri Narendra Shah (Deponent herein) 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/sister concerns. A copy of the said letter dated 16th July 1996 is taken on record and marked Exhibit ‘P-5’. 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.41,199/-. The said letter dated 23rd July 1996 is taken on record and marked Exhibit ‘P-6’. Since the Defendant failed to pay the said amount, the Plaintiff filed the above Suit for recovery of amount of Rs.41,199/- together with interest at the rate of 18% per annum on Rs.41,199/- amounting to Rs.22,864/- aggregating to a total of Rs. 64,063/- as per the particulars of claim annexed as Exhibit ‘I’ to the Plaint and further interest at the rate of 18% per annum from the date of filing 4 s-4308-99 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 the 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 four bills aggregating to Rs.41,199/- were raised by the Plaintiff on the Defendant. Exhibits ‘P-2’ and ‘P-3’ shows that the Plaintiff by its letter dated 18th July 1995 and 27th October 1995 called upon the Defendant to make payment of the said balance dues of Rs.41,199/- to the Plaintiff. According to the Plaintiff, the Defendant did not respond to the said letters. Exhibit ‘P-4’ shows that the Plaintiff through its Advoate’s letter dated 21st June 1996 called upon the Defendant to make the said payment of Rs.41,199/- together with interest. The Defendant through its Advocate’s letter dated 16th July 1996 (Exhibit ‘P-5’) acknowledged the Plaintiff’s claim. However, the Defendant alleged that the Deponent 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/sister 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-6’) once again calling upon the Defendant to remit the payment of Rs.41,199/- together with interest to which there was no response from the Plaintiff. Since the Defendant failed to pay the said amount, the Plaintiff has filed the above Suit for recovery of amount of Rs. 41,199/- together with interest at the rate of 18% per annum on Rs. 5 s-4308-99 41,199/- amounting to Rs.22,864/- aggregating to a total of Rs. 64,063 as per the particulars of claim annexed as Exhibit ‘I’ to the Plaint and further interest at the rate of 18% per annum 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 18th January 2000 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. 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.64,063/- with further interest thereon 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. ]