Bombay High Court
Gautam G. Rajani vs Samir N. Bhojwani on 15 January, 2021
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUMMARY SUIT NO. 211 OF 2020
Gautam G. Rajani
An Adult of Mumbai
Indian Inhabitant, residing at
1602-A, Beau Monde Building,
Appa Saheb Marathe Marg,
Prabhadevi, Mumbai 400 025. .... Plaintiff
Vs.
Samir N. Bhojwani
An adult of Mumbai
Indian Inhabitant, residing at
Samir Complex, 1st and 2nd Floor,
Adrews Road, Near Holy Family
Hospital, Bandra (West),
Mumbai 400 050. ... Defendant
Mr.Mukul Taly a/w. Mr. Aziz Mahommed i/b S. Mahomedbhai and Co. for
plaintiff.
None for defendant.
CORAM : N.J. JAMADAR, J.
DATE : 15th JANUARY 2021
ORAL JUDGMENT :
1. This commercial division summary suit is instituted for the recovery
of a sum of Rs.2,16,82,000/- along with interest @ 12% per annum on the
principal sum of Rs.1,80,00,000/- from the date of the suit till realization.
2. The material averments in the plaint can be stated in brief as
under :-
(a) The defendant is carrying on the business as a
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developer/builder. The defendant had approached the plaintiff to
advance money for the purpose of his business. The plaintiff had
thus advanced the amounts of Rs. 50,00,000/- in the month of
November 2015, Rs. 60,00,000/- and Rs.70,00,000/- in the month of
February 2017 to the defendant, against the bills of exchange drawn
by the defendant for the respective amounts on 9 th November 2015,
9th February 2017 and 10th February 2017, respectively.
(b) The defendant had agreed to repay the said amount along with
interest @ 14% per annum. Initially, the defendant paid the accrued
interest to the plaintiff at the agreed rate. Later on, the interest was
paid @ 12% per annum. However, the defendant committed default
in payment of interest in respect of the loan amount of Rs.
50,00,000/- with effect from 28th May 2018, in respect loan amount
of Rs.60,00,000/- from 15th May 2018 and in respect of advance of
Rs. 70,00,000/- from 29th May 2018. Despite repeated demands, the
defendant neither repaid the principal amount nor the accrued
interest thereon. Hence, the plaintiff was constrained to issue the
demand notices on 13th December 2019. The demand notices were
duly served on the defendant. Yet, the defendant did not comply
with the demand. Hence, the suit for recovery of the aforesaid
amounts along with interest.
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3. The writ of summons was issued on 27th February 2020. It was
served on the defendant on 29th February 2020. Mr. Sampatrao C. Ghatage,
Bailiff and Clerk attached to the office of Sheriff, Mumbai has filed an
affidavit of service along with postal acknowledgment evidencing the
service of writ of summons on the defendant. The defendant has not
tendered appearance within the period stipulated by sub-rule (3) of Rule 2
of Order XXXVII of Code of Civil Procedure, 1908 ('the Code'). On account
of the default on the part of the defendant, in entering appearance within
the stipulated period, the Court is enjoined to hold that the allegations in
the plaint are admitted by the defendant and the plaintiff is entitled to the
decree.
4. Nonetheless this Court has considered the justifiability of the
plaintiff's claim. The plaintiff has tendered an affidavit in support of the
claim. The plaintiff has also tendered the original documents for the
perusal of the Court. The documents indicate the claim of the plaintiff that
the amounts were advanced against the bills of exchange drawn by the
defendant finds support in the original bills of exchange dated 9 th
November 2015, 9th February 2017 and 10 th February 2017 placed on
record. The fact that the plaintiff had advanced the amounts of
Rs.50,00,000/-, 60,00,000/-
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and 70,00,000/- through banking channels is substantiated by the
extract of the plaintiff's account maintained with the HDFC Bank,
Sandoz House, Worli Branch. It reveals that the sums of
Rs.50,00,000/-, 60,00,000/- and 70,00,000/- were paid to the
defendant by cheques drawn in favour of the defendant on 11 th
November 2015, 10th February 2017 and 13th February 2017,
respectively. The copies of the demand notices dated 13 th December
2019 lend support to the claim of the plaintiff that the repayment of
the principal amount and interest thereon was demanded
thereunder. The postal acknowledgment, dated 17 th December 2019
evidence the service of the demand notice on the defendant.
5. The aforesaid documents, thus, bring the case of the plaintiff within
the ambit of clause (a) of sub-rule (2) of Rule 1 of Order XXXVII. As the
claim of the plaintiff is supported by the documents of unimpeachable
character and has gone completely uncontroverted, there is no other go but
to decree the suit. Hence, the following order :-
O R D E R
(i) The suit stands decreed.
(ii) The defendant do pay a sum of Rs.2,16,82,000/-
along with interest @ 12% per annum on the principal
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sum of Rs.1,80,00,000/- from the date of the suit till
realization.
(iii) The defendant do pay costs of Rs.1,50,000/-, to the
plaintiff, quantified under Section 35 of the Code of Civil
Procedure, 1908, as amended by the Commercial Courts
Act, 2015.
(iv) The plaintiff is also entitled to refund of Court fees in
accordance with the rules.
(v) The decree be drawn up and sealed expeditiously.
[ N.J. JAMADAR, J. ]
Digitally
signed by
Shraddha Shraddha
K. Talekar
K.
Date:
Talekar 2021.01.19
17:09:14
+0530
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