1 s-232-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.232 OF 2009. Kokila Jaykumar Gandhi. ..Plaintiff. v/s. M/s. Skyline Pharma and Ors. ..Defendants. ... Mr.Ganesh M.Shetty, for the plaintiff. None for the defendants. ... CORAM : S.J.KATHAWALLA, J. DATE : 13TH JANUARY 2011. P.C.: 1. The plaintiff is carrying on her sole proprietory business of dealing in gums, chemicals, solvents, excipients, pharmaceuticals and other allied activities in the name of M/s Shakti Enterprises, having her office at 15/5, Alpha Apartment, Parleshwar Road, Vile Parle (E), Mumbai 400057. Defendant No. 1 is a partnership firm carrying on business in the name of M/s Skyline Pharma having its office at Khasra No. 105/106, Village Katha, Baddi, Dist. Solan, H.P. and also at 131, Rag Tower, Gen. A.K. Vaidya Marg, Gokuldham, Goregaon (E), Mumbai 400063. Mr. Satyender Singh and Mr. Ajay Chaudhary who are defendant nos. 2 and 3 respectively in the present suit are partners of defendant no. 1. The plaintiff is seeking an ex-parte decree against the defendants for non payment for goods sold, supplied and delivered by the plaintiff to defendant No. 1. 2 s-232-09 2. The plaintiff has tendered her affidavit of evidence dated September 9, 2009. The said evidence is taken on record and marked ‘X’ for identification. 3. The plaintiff has stated in the plaint as well as in the affidavit of evidence that pursuant to purchase orders dated August 8, 2007, September 19, 2007 and September 29, 2007 received by the plaintiff from the defendant no.1 the plaintiff sold, supplied and delivered goods set out in the purchase orders to defendant no. 1 at agreed rates from August 13, 2007 to October 5, 2007. The said purchase orders are marked as Exhibit P-1, P-2 and P-3 respectively. 4. The plaintiff has stated in the plaint as well as in the affidavit of evidence that invoices were issued by the plaintiff for the goods sold, supplied and delivered to defendant no.1. The particulars of the invoices along with exhibit numbers are set out hereunder:- S. No. Invoice No. Date of Invoice Amount (Rs.) Exhibit 1. 16055 August 13, 2007 73,989 P-4 2. 16056 August 13, 2007 2,50,929 P-5 3. 16078 September 19, 2007 26,649 P-6 4. 16079 September 19, 2007 74,079 P-7 5. 16091 October 1, 2007 1,38,969 P-8 6. 16092 October 1, 2007 57,159 P-9 7. 16093 October 5, 2007 1,05,939 P-10 Total 7,27,712.51 3 s-232-09 5. The plaintiff has stated in the plaint as well as in the affidavit of evidence that the plaintiff raised a debit note for rate of difference bearing no. 2007-09-01 dated September 19, 2007 for Rs. 33,175.50. Thus, the aggregate amount payable to the plaintiff by the defendants was Rs. 7,60,888.01. The plaintiff submits that the invoices and the said debit note were duly prepared and signed by the plaintiff’s son, Mr. Sourav Jaykumar Gandhi for and on behalf of the plaintiff. The plaintiff further submits that she can identify his signatures and the contents therein are true and correct. The said debit note is marked as Exhibit P-11. 6. The plaintiff has stated in the plaint as well as in the affidavit of evidence that the goods under her firm’s invoices were dispatched through M/s Okara Roadways (Regd.) for which seven lorry receipts were issued bearing numbers 893922 dated August 14, 2007, 893923 dated August 14, 2007, 892618 dated September 20, 2007, 894923 dated September 20, 2007, 908066 dated October 2, 2007, 908381 dated October 4, 2007 and 910014 dated October 6, 2007. The plaintiff submits that the contents are true and correct. The carbon copies of the said lorry receipts are marked as Exhibits P-12, P-13, P-14, P-15, P-16, P-17 and P-18. 7. The plaintiff has stated in the plaint as well as in the affidavit of evidence that the defendants had sought to make payment to the plaintiff by issuing post dated cheques bearing numbers 128535 dated November 14, 2007 for Rs. 3,24,917, 138240 dated December 15, 2007 for Rs. 50,000 and 149045 dated January 24, 2008 for Rs. 50,000 aggregating to Rs. 4,24,917. The said cheques were dishonoured by the defendant no. 1’s bank for want of sufficient funds in the defendant no. 1’s bank account. The plaintiff has also submitted 4 s-232-09 four bank memos in support of the same. The said cheques and bank memos are marked as Exhibits P-19, P-20, P-21, P-22, P-23, P-24 and P-25. 8. The plaintiff has stated in the plaint as well as in the affidavit of evidence that the defendants thereafter made part payment in all, aggregating to Rs. 1,25,000 thereby leaving a balance principal amount of Rs. 6,35,888.01 as shown in the statements of account maintained by the plaintiff for April 1, 2007 to March 31, 2008 and April 1, 2008 to March 31, 2009. The said statements of account are marked as Exhibits P-26 and P-27 respectively. 9. The plaintiff has stated in the plaint as well as in the affidavit of evidence that the defendants were very irregular in making payments, hence, after sending letters and reminders to the defendants, the plaintiff ultimately by her advocate’s notice dated September 10, 2008 called upon the defendants to pay to the plaintiff the said balance of Rs. 6,35,888.01 together with interest @ 24% per annum within 10 days from receipt of notice. The said notice is marked as Exhibit P-28. The plaintiff has stated that the defendants duly received and acknowledged the said notice but failed and neglected to comply with and / or reply to the same. The said acknowledgements are marked as Exhibits P-29, P-30 and P-31. 10. The plaintiff has therefore submitted that the plaintiff is entitled to the principal amount of Rs. 6,35,888.01 along with claim of interest on the said principal at the rate of 18% per annum from August 6, 2008 being the last date of part payment up to the date of filing of this suit on December 12, 2008. The plaintiff states that she is entitled to a sum of Rs. 32,613.24 as and by way of interest on the said principal as per Exhibit G to the plaint. 5 s-232-09 11. I have gone through the averments made in the plaint and also the contents of the affidavit of evidence along with the compilation of documents filed by the plaintiff. From Exhibits P-1 to P-3 it is established that purchase orders were placed by defendant no.1 on the plaintiff pursuant to which the goods were delivered by the plaintiff to defendant no.1. From Exhibits P-4 to P-11, it is established that the amount payable to the plaintiff by the defendants was Rs. 7,60,888.01. From Exhibits P-19 to P-27 it is established that principal amount of Rs. 6,35,888.01 is currently outstanding after the defendants made payment of Rs. 1,25,000. From Exhibit P-28 to P-31 it is established that the defendants were called upon to make payment of the outstanding amounts to the plaintiff. However the defendants failed and neglected to pay the same to the plaintiff and that the plaintiff is entitled to receive the amount as recorded / called upon in the said notice of the plaintiff. 12. The defendants were summoned by this Court on June 15, 2009 to answer the plaintiff’s claim. Further, as set out in the affidavit of service the writ of summons dated July 20, 2009 has been served on the defendants. However, the defendants have not come forward to defend the suit and have not filed their written statement. 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. 13. In my view, the relief sought by the plaintiff is required to be granted. In view thereof, I pass the following order:- (a) The defendants are ordered and decreed to pay to the plaintiff a sum of Rs. 6,35,888.01 along with simple interest at the rate of 12% 6 s-232-09 per cent from the date of the filing of the Suit till payment and/or realisation. (b) The defendants to pay costs of this suit to the plaintiff. (c) The suit is accordingly disposed of in favour of the plaintiff and against the defendants with costs. [ S.J. KATHAWALLA, J. ]