Order 1

Order Details: Other
Pdf Text: ..1.. Summary Suit No.874/2018
MHCC010043012018 Presented on : 31/03/2018
Registered on : 24/08/2018
Decided on : 16/10/2024
Duration : 06Y 06M 17D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
Exhibit-09
SUMMARY SUIT NO.874 OF 2018
(CNR NO.MHCC01-004301-2018)
Geeta Sanjay Jain, )
an adult, Indian Inhabitant of Mumbai )
having address at 1102, Girnar Tower )
Co-operative Housing Society, Seth )
Motisha Lane, Mazagaon, Mumbai-400010 )
through her constituted attorney Shripal )
Shantilal Jain. )..Plaintiff
V/s.
1. Kumar Builders, a registered partnership firm
having its principal place of business at 10th
floor, Kumar Business Centre, CTS No.29,
Opp. Pune Central Bund Garden Road,
Pune-411001 and also at Pune KBC, Survey
No.362/3A, Bund Garden Road, Opp. Pune
Central, Shangrila Garden, Pune 411001 and
at Office No.07, Ali Chamber, N. M. Road,
Fort, Mumbai-400001 and at Office No.7,
Ground floor, Suryodaya Estate, Tardeo,
Mumbai 400034.
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2. Lalit Kesarimal Jain, a partner of M/s. Kumar
Builders and M/s. Kumar Builders Mumbai,
having address at 10th floor, Kumar Business
Centre, CTS No.29, Opp. Pune Central Bund
Garden Road, Pune-411001 and also at Pune
KBC, Survey No.362/3A, Bund Garden Road,
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..2.. Summary Suit No.874/2018
Opp. Pune Central, Shangrila Garden, Pune
411001 and at Office No.07, Ali Chamber, N.
M. Road, Fort, Mumbai-400001 and at Office
No.7, Ground floor, Suryodaya Estate, Tardeo,
Mumbai 400034.
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3. Kumar Builders Mumbai Reality Private
Limited, a private limited company registered
under the Companies Act, 1956 having
registered office address at 10th floor, Kumar
Business Centre, CTS No.29, Opp. Pune
Central Bund Garden Road, Pune-411001 and
also at Pune KBC, Survey No.362/3A, Bund
Garden Road, Opp. Pune Central, Shangrila
Garden, Pune 411001 and at Office No.07, Ali
Chamber, N. M. Road, Fort, Mumbai-400001
and at Office No.7, Ground floor, Suryodaya
Estate, Tardeo, Mumbai 400034.
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4. Kumar Builders Mumbai, a partnership firm
having place of business at Office No.07, Ali
Chamber, N. M. Road, Fort, Mumbai 400001
and at Office No.7, Ground floor, Suryodaya
Estate, Tardeo, Mumbai 400034.
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5. Kumar Urban Development Pvt. Ltd. a private
limited company registered under the
Companies Act, 1956 having registered office
address at 10th floor, Kumar Business Centre,
CTS No.29, Opp. Pune Central, Bund Garden
Road, Pune-411001 and at Kumar Capital,
2nd floor, 2413, East Street, Camp, Pune 411
001 and Mumbai Office at Office No.7,
Ground floor, Suryodaya Estate, Tardeo,
Mumbai 400034.
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6.
And
Kumar Builders Project Pune Pvt. Ltd.,
having its principal place of business at 10th
Floor, Kumar Business Centre, CTS No.29,
Opp. Pune Central Bund Garden Road, Pune-
411001 and also at Pune KBC, Survey
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..3.. Summary Suit No.874/2018
No.362/3A, Bund Garden Road, Opp. Pune
Central, Shangrila Garden, Pune 411 001 &
at Office No.07, Ali Chamber, N.M. Road,
Fort, Mumbai – 400001, and at Office No.7,
Ground Floor, Suryodaya Estate, Tardeo,
Mumbai 400034.
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)..Defendants
Appearance :-
Learned Advocate Yashpal Jain for plaintiff.
Learned Advocate Roshan Bamne for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 16/10/2024.
O R D E R
1 This summary suit is filed by plaintiff for recovery of
amount contending that defendant No.1 is a firm, defendant No.2 is a
partner, defendant No.3 is another firm and defendant No.4 is also a
sister concern. Defendant No.1 approached to the plaintiff through
defendant No.2 for financial assistance. Defendants are in business of
building construction. Having assurance of payment of interest, the
plaintiff has advanced the amount of Rs.50,00,000/- to the defendant
No.1 and defendant Nos.1 and 4 have executed promissory note dated
07/06/2010 in favour of plaintiff and agreed to pay interest at the rate
of 12% per annum. The defendant No.3 issued tax deduction
certificates dated 29/04/2011 and 01/07/2011, thus, defendant Nos.3
and 4 have both acknowledged the liability towards plaintiff to pay the
amount under the promissory note with interest. Defendants have paid
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interest for some period, thereafter, acknowledged the balance
consideration amount till 31/03/2018. Inconsequence of failure to pay
the balance amount of interest, the plaintiff called upon the defendants
to pay the amount under promissory note with interest which they
failed to pay, therefore, plaintiff filed this suit for recovery of amount
and calculated the claim till filing of the suit i.e. Rs.91,75,253/-.
2 In response to the writ of summons, defendant Nos.1 to 4
were allowed to tender their appearance as per the order in chamber
summons No.654 of 2019 by condoning delay. While filing of chamber
summons No.654 of 2019, defendant Nos.1 to 4 have contended that
defendant No.1 firm is converted under the company name as “Kumar
Builders Project Pune Pvt. Ltd.” and defendant No.2 became the partner
of said company; likewise defendant No.3 firm with other companies
have converted under the name “Kumar Urban Development Pvt. Ltd.”.
Inconsequence to this information, plaintiff took out chamber summons
to implead these two companies as defendant Nos.5 and 6. The
chamber summons No.654 of 2019 came to be allowed and these newly
added parties have tendered their appearance as defendant Nos.5 and
6. Plaintiff has taken out summons for judgment No.68 of 2020 and
defendant Nos.5 and 6 appeared and filed their reply to summons for
judgment.
3 It emerges from the reply to summons for judgment No.68
of 2020 that defendant Nos.5 and 6 have taken over defendant Nos.1, 3
and 4 and defendant No.2 became partner of defendant No.6.
Therefore, defendant Nos.5 and 6 are only contesting parties. Further it
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reveals from the reply that defendant Nos.5 and 6 have not denied the
execution of promissory note and receipt of amount, but contended that
it is subject to their verification. The inference can be drawn from the
pleading that they have admitted the receipt of amount of loan and the
execution of the promissory note. It is further contended that the
defendant No.1 has paid the total amount of Rs.7,60,000/- and also
mentioned the specification of tax deduction made by defendant No.4
in paragraph No.(xv) of the reply. Defendant Nos.5 and 6 have raised
triable issue in paragraph No.24 of affidavit in support to summons for
judgment, claiming that these are to be decided by allowing them to
adduce evidence and unconditional leave to defend.
4 Upon hearing both the parties on summons for judgment
No.68 of 2020, this Court granted conditional leave to the defendant
Nos.5 and 6 upon depositing Rs.50,00,000/- in the Court within one
month from the date of order i.e. 05/08/2024. However, the defendant
Nos.5 and 6 till date failed to deposit the amount of Rs.50,00,000/-.
Hence, suit is proceeded further. The defendant Nos.5 and 6 have failed
to comply the conditional order. The defendant Nos.5 and 6 have taken
over the defendant Nos.1, 3 and 4 and defendant No.2 has become
partner of defendant Nos.5 and 6, thus, all the defendants are having
common liability to pay the amount though the defendant Nos.5 and 6
have taken over all the responsibility. In case of decreeing the suit
against defendant Nos.5 and 6, the defendant Nos.5 and 6 may take
escape through other defendants, therefore, the decree deserves to be
passed against all the defendants jointly and severally.
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5 Heard rival parties. There is nothing on record placed by
the defendants to show that they have complied the order of this Court.
Therefore, in absence of compliance of conditional order of deposit of
amount for leave to defend, the suit was required to be proceeded
further without defence as per the provisions of clause 3(6)(b) of Order
XXXVII of Code of Civil Procedure, hence, suit deserves to be decreed
forthwith.
6 The defendants failed to comply the conditional order of
this Court, however it is submitted that the defendants have challenged
the order on summons for judgment No.68 of 2020 granting conditional
leave to defend before the Hon’ble High Court and prayed to adjourn
the matter till decision of the Appeal. I am fortified by the judgment
passed by the Hon’ble Supreme Court in the case of Sanjiv Kumar Singh
Vs. The State of Bihar and others reported in 2023 LiveLaw (SC) 63 and
MANU/SCOR/11194/2023, wherein it is opined by the Hon'ble
Lordship that -
“keeping in view the provisions as contained in Order
XXXXIV Rule 5 of Code of Civil Procedure, unless the
appeal is listed and there is an interim order, the mere
filing of the Appeal would not operate as a stay”
7 Admittedly, there is no stay granted in this matter, hence, I
find no force in the submissions of defendants.
8 I am fortified by the judgment passed by the Hon'ble High
Court in the case of K. R. Patel (HUF), Mumbai Vs. M. M. Developers,
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Mumbai and others reported in 2015(3) Mh.L.J. 260. The Hon'ble High
Court has opined in paragraph No.7 -
“in my view the course of action that is proposed to be
followed by the Trial Court can be said to be in
contravention of the mandate of Order XXXVII Rule (3)
(6)(b) of the Civil Procedure Code. A reading of the said
provision makes it clear that on failure of the Defendant
to comply with the condition imposed by the Court, the
Plaintiff is entitled to judgment forthwith. The said
provision was the subject matter of the judgment of a
Division Bench of this Court in M/s. D. Shanalal's case
(supra), where the Division Bench has observed that
when the Defendant fails to comply with a conditional
order passed under Order XXXVII, the Defendant is
precluded from further contesting the plaintiff's claim
and that the facts stated in the plaint must be considered
to have been admitted by the Defendant and the
Plaintiff becomes entitled to judgment. The Division
Bench has further observed that Order XXXVII not only
provides for abridgment of the procedure of suits
covered by the said provisions but also the said
provisions restrict and/or curtail the rights of the
Defendants in these suits to contest the Plaintiff's claim.”
9 In view of the observation in the cited case, it is not
possible to abstain from proceeding with the matter. There is no scope
of any further inquiry and the plaintiff would be entitled for the
judgment forthwith, due to the default committed by defendant in
obeying conditional order passed in summons for judgment. The
omission to comply the order of summons for judgment would
definitely amount that the claim in the plaint is accepted to the
defendant and the Court has to proceed to pass judgment in terms of
the law which has been enunciated in the cited case K. R. Patel Supra.
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10 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 18.25% per annum from the defendants, but, to
me, it appears to be exorbitant. No doubt the plaintiff has suffered loss
in business and profit, due to failure to repay the amount by the
defendants. Had it been paid to the plaintiff as per demand, it would
have invested and would have earned profit therefrom. Therefore, I am
of the view that the plaintiff is entitled for interest at the rate of 9% per
annum from the date of default i.e. 17/03/2018, till its full realisation.
11 As the plaintiff became constrained to file the suit for
recovery of loan amount, therefore, defendants are liable to pay the
costs of suit. In the result, I proceed to pass the following order :-
ORDER
1. Summary Suit No.874 of 2018, is hereby partly
decreed with costs.
2. Plaintiff do recover an amount of Rs.50,00,000/- from
the defendants alongwith interest at the rate of 9%
per annum from the date of default i.e. 17/03/2018,
till the recovery of entire amount.
3. Court fees, if any, be refunded as per rule.
4. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 16/10/2024 C.R. No.84
Dictated and Typed on : 16/10/2024.
Signed by HHJ on : 19/10/2024.
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“Certified to be true and correct copy of the original signed order”.
19/10/2024
at about 5.40 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 16/10/2024
Order signed by Hon'ble Judge on : 19/10/2024
Order uploaded on : 19/10/2024
at about 5.40 p.m.
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