Navkar Nivesh Pvt Ltd vs Parag Pankaj Thakker
2021 Latest Caselaw 9861 Bom

                                                   1. COMSS No. 541 OF 2019.odt



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION
           COMMERCIAL SUMMARY SUIT NO. 541 OF 2019


 Navkar Nivesh Pvt. Ltd.                              ...Plaintiff
          Versus
 Parag Pankaj Thakker                                 ...Defendant
                                   ----------
 Mr. Mohammed Zain Khan a/w Shristi Shetty - Advocate for the
 Plaintiff.
 None for the defendant.
                         ----------
                           CORAM : DAMA SESHADRI NAIDU, J.

DATE : 28th JULY, 2021.

P.C. :

The plaintiff is a registered Non-Banking Financial Company. It lent Rs.2,50,00,000/- to the defendant. Of that amount, two crore rupees was through RTGS and 50 lakh rupees through a cheque. To be explicit, the plaintiff paid to the defendant one crore each on 10th and 11th November and fifty lakh rupees through the cheque on 30 th November 2014. Through a registered deed, the defendant is said to have mortgaged dated 27th November 2014. But the flats that were mortgaged were non-existence. Nor do those flats have ever been built.

2. Initially, on few occasions, the defendant was paying Seema 1/4

1. COMSS No. 541 OF 2019.odt

interest monthly. Later, he defaulted on the loan; he has neither constructed the flats nor repaid the loan.

3. When the plaintiff demanded the repayment, the defendant issued notice, dated 09th November 2016, to the plaintiff. In that notice, he admitted the debt, besides issuing two post-dated cheques. One cheque is for Rs.7,50,000/-; it covers the interest. The other cheque for Rs.2,50,000,00/-; it covers the principal. But both cheques, dated 10 th February 2017, were dishonored on 13th February 2017. So, the plaintiff issued a statutory notice on 09th March 2017. But that notice elicited no reply from the defendant.

4. Under these circumstances, the plaintiff has filed this suit.

5. Though, the plaintiff had taken out the summons and had them served successfully on the defendant. Yet, the defendant did not enter his appearance. To that effect, the plaintiff has also filed proof of service with the Bailiff's affirmation.

6. It is a Commercial Summary Suit with a strict time frame. And Order 37 of CPC, Rule 2 (3) of Order 37 mandates thus:

"The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together Seema 2/4

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with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."

7. As is evident from the above statutory extract, after suit summons has been served on the defendant, he ought to appear before the Court. On his default, "the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for the sum not exceeding the sum mentioned in the summons together with interest".

8. Under these circumstances, I have perused the record, including Exh. A to K. Besides the pleadings, the documents, all of which stand marked, show that the defendants owe money to the plaintiff. That apart, the defendants, with their absence, are deemed to have admitted the plaint allegations. As to the defendants' liability, in para 14 of the plaint, the plaintiff has specifically averred as follows.

"14. The Plaintiff states in the aforesaid circumstances the Defendant has issued the Cheque bearing no. 024763 drawn for an amount of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand Only) and Cheque bearing no. 024764 drawn for an amount of Rs. 2,50,00,000/- (Rupees Two Crore Fifty Lakhs Only) both dated 10th February 2017 drawn on ICICI Bank, Mulund Vikas Paradise Branch for repaying the loan along with interest as agreed under the Deed of Mortgage dated 27th November 2014 thereby admitting its liability for the payment of the amount of Rs. 2,57,50,000/-

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(Rupees Two Crore Fifty Seven Lakhs Fifty Thousand Only). However, inspite of the aforesaid the Defendant has failed to make payment by wrongfully stopping payments. The Plaintiff also states that the Defendant has failed to make payment of the amount of Rs. 7,50,000/- (Rupees Seven Lakh fifty thousand only) which was due, payable towards the interest for the period from 10th August 2016 to 10th November 2016 and also the amount of Rs. 3,00,000/- (Rupees Three Lakh only) which was short paid by the Defendant as states in para no. 6 above. Accordingly, the plaintiff is entitled to a Decree and Judgment in its favor for any amount of Rs. 2,68,00,000/- (Rupees Two Crore Sixty Eight Lakh Only) with 24% interest thereon from 10th February 2017 till filing of the Suit being an amount of Rs. 1,13,45,333/- (Rupees One Crore Thirteen Lakhs Forty Five thousand Three Hundred and Thirty Three Only) and further interest at 24% till actual realization."

9. As a result, the Court decrees the Suit for Rs.

3,93,42,404/- (Rupees Three crore ninety-three lakhs forty-two thousand four hundred and four) along with interest at the rate of 9 % per annum from the date of decree, till the realization of the decretal amount.

Thus, the Commercial Summary Suit No. 541 of 2019 stands decreed.

Refund of court fees as per Rules.

                                 [DAMA SESHADRI NAIDU, J.]



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