Bombay High Court
Kavita 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. 205 OF 2020
Kavita 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 recovery of a
sum of Rs.1,40,43,367/- along with further interest @ 12% per annum
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 carries on the business as a developer/builder.
The defendant had approached the plaintiff to advance money for his
business. The plaintiff had initially advanced a sum of Rs.
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62,00,000/- to the defendant against a bill of exchange dated 8 th
January 2017 drawn by the plaintiff. Later on, in the month of
October 2017, the plaintiff had advanced a further sum of
Rs.1,09,00,000/- to the defendant against a bill of exchange drawn
by the defendant on 10th October 2017. The defendant had agreed to
repay the loan amount along with interest @ 14.40 % per annum, on
demand.
(b) The defendant did pay interest on the first tranch of
Rs.62,00,000/- initially @ 14.40 % per annum, progressively tapered
down to 12% per annum. The defendant did repay the amount of
Rs.60,00,000/- in installments of Rs.25,00,000/- and Rs.35,00,000/-.
A sum of Rs. 2,00,000/- along with interest on the reduced principal
amount remained outstanding.
(c) The defendant committed default in payment of interest on the
second tranch of Rs.1,09,00,000/- falling due from 24 th April 2018.
Neither the principal amount nor the interest accrued thereon was
paid by the defendant despite repeated demands.
(b) Hence, the plaintiff addressed demand notices on 13 th
December 2019 and called upon the defendant to repay the
outstanding amount. Despite service of the notice, the defendant
failed to repay the outstanding principal amount and the interest
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accrued thereon, as per agreed rate. Hence, the plaintiff was
constrained to institute this suit.
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 sworn an
affidavit of service to which a copy of the postal acknowledgment
evidencing the service of writ of summons on the defendant on 29 th
February 2020, is annexed.
4. Despite service of writ of summons, the defendant has not tendered
appearance within the period stipulated by Order XXXVII, Rule 2, Sub-rule
(3) of the Code of Civil Procedure, 1908 ('the Code'). On account of failure
on the part the defendant to enter 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.
5. Nonetheless this Court has considered the justifiability of the
plaintiff's claim and the admissibility thereof under the provisions of Order
XXXVII of the Code. In order to substantiate the averments in the plaint,
the plaintiff-Kavita G. Rajani has filed an affidavit (Exh.P-1). The plaintiff
has also tendered the compilation of original documents for the perusal of
the Court. The claim of the plaintiff that she had advanced the amounts
against the bills of exchange finds support in the bill of exchange (Exh.P-2)
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dated 8th January 2017 and bill of exchange dated 10 th October 2017
(Exh.5).
6. The advance of loan is evidenced by the extract of the bank account
of the plaintiff maintained with the HDFC Bank, Sandoz House, Worli
Branch (Exh.P-9). A sum of Rs.62,00,000/- was paid to the defendant on
19th January 2017 and another sum of Rs.1,09,00,000/- was paid on 12 th
October 2017.
7. The plaintiff claimed to have received a sum of Rs.60,00,000/- out of
the first tranch of loan . The claim is restricted to the principal sum of
Rs.2,00,000/- and the interest which accrued on the amount of
Rs.37,00,000/- from 3rd October 2018 till 20th May 2019 and the interest
which accrued on the balance amount of Rs.2,00,000/- from 21 st May
2019.
8. The claim seems to be justifiable. However, as regards the interest on
the amount of Rs.1,09,00,000/-, from the own showing of the plaintiff, the
interest is due and payable with effect from 24 th April 2018. In the
particulars of claim, under Part B, varying amounts are claimed for
different periods aggregating to Rs.23,39,867/-. This seems to have slightly
increased the amount towards interest. Since the plaintiff claims that the
interest is due and payable on the amount of Rs.1,09,00,000/- with effect
from 24th April 2018, it would be appropriate to calculate the interest from
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that date upto the date of institution of the suit. So calculated amount of
interest comes to Rs.22,89,000/-.
9. As the claim of the plaintiff is supported by documents of
unimpeachable character and has also gone uncontroverted and it falls
within the ambit of clause (a) of sub-rule (2) of Rule 1 of order XXXVII, the
plaintiff is entitled to a decree. Hence, the following order :-
O R D E R
(i) The suit stands partly decreed.
(ii) The defendant do pay a sum of Rs.1,39,92,000/-
(Rupees One Crore Thirty Nine Lakh Ninety Two Thousand
only) along with interest @ 12% per annum on the
principal sum of Rs.1,11,00,000/- 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.
Digitally
signed by
Shraddha Shraddha
K. Talekar
(iv) The plaintiff is also entitled to refund of Court fees in
K.
Date:
Talekar 2021.01.19
16:48:22 accordance with the rules.
+0530
(v) The decree be drawn up and sealed expeditiously.
[ N.J. JAMADAR, J. ]
Shraddha Talekar PS
