Housing Development Finance ... vs Solaris Development Private ...
2021 Latest Caselaw 4049 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       ORDINARY ORIGINAL CIVIL JURISDICTION

                  INTERIM APPLICATION (L) NO. 5131 OF 2021
                                    IN
                COMMERCIAL SUMMARY SUIT (L) NO. 4547 OF 2021


Housing Development Finance Corporation
Limited                                                  ... Applicant/Orig. Plaintiff

          Versus

Solaris Developers Private Limited
and Ors.                                                 ... Defendants

                                    ----
Mr. Charles D'Souza a/w Mr. Nikhil Rajani and Ms. Jyoti Sanap i/b M/s. V.
Deshpande and Co. for Applicant/Plaintiff.
Mr. Mayank Bagla i/b Punit Ghobade for Defendant.
                                    ----
                                         CORAM : K.R.SHRIRAM, J.

DATED : 4th MARCH 2021.

P.C. :

1. Mr. D'souza opened the innings by saying for the moment he is

only seeking ad-interim in terms of prayer (c) and (d).

Mr. Bagla responded that it is plaintiff's case that 13 flats and a

bungalow has been mortgaged to plaintiff. The claim of plaintiff is Rs.15

Crores and odd but 13 unsold flats in the property being developed by

defendant no.1 valued at about Rs.26 Crores is mortgaged and the

bungalow of Defendant Nos.2 and 3 worth about Rs. 8 to 10 Crores have

also been mortgaged to plaintiff. Therefore, the question of defendants

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being called upon to make disclosures as prayed in prayer clauses (c) and

(d) of Interim Application does not arise. This response of Mr. Bagla was to

a query of the court during pre-lunch hearing, as to whether defendant

would agree to make statement to disclose as sought in prayer clauses (c)

and (d). Mr.Bagla at that stage had requested the matter be taken up after

lunch so that he could take instructions and what is noted above is the

submission made by Mr. Bagla in the post lunch session.

Mr. Bagla had also mentioned that the suit itself is not

maintainable. In my view that will be a defence that defendants may take

in reply to plaintiff's Summons for Judgment.

2. Mr. D'souza submitted that as regards those 13 flats, they are

not constructed at all and defendant has also obtained stay on the SARFAESI

proceedings. Mr. D'souza stated that if defendant would make a statement

that plaintiff can go ahead and sell the bungalow, then it would reduce

plaintiff's claim to a large extent. Mr. Bagla is not agreeable to this

suggestion.

Mr. Bagla is also unable to answer whether any of the

defendants have been filing their annual income tax returns and audited

balance sheet particularly since defendant no.1 is a company.

3. The fact is defendants have borrowed money and have not

repaid the loan. The entire loan also has been recalled. The loan has also

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been classified as non performing asset. The deed of personal guarantee

given by Defendant No.2 and Defendant No.3 has also been invoked.

Despite all this not a penny has been paid and defendants are even opposing

SARFAESI proceedings, as submitted by Mr. D'souza. In my view granting

prayer clause (c) and (d) at this point of time is absolutely harmless in as

much as defendants are only going to make disclosures. The court is not

passing any order at this stage on the assets to be disclosed by defendants.

4. In the circumstances, considering the situation, in my view

plaintiff should be entitled to ad-interim in terms of prayer clause (c) and

(d) of the Interim Application and the same reads as under ;

(c) that pending the hearing and final disposal of the Application/Suit, the Defendants be ordered and directed to discover/disclose on oath the assets held by them either in their own name and/or in the joint names including details of all their Bank accounts (with account numbers, Bank, Branch etc.) and all the amounts lying in the said Bank accounts and also all debts and receivables payable by third parties to the Defendants with their precise and exact addresses.

(d) that pending the hearing and final disposal of the Application/Suit, the Defendants be ordered and directed to file their Income Tax Returns for the last three financial years and also with audited balance sheet for last three years within a period of 2 weeks from the date of the order or within such time as this Hon'ble Court may deemed fit and proper.

These disclosures shall be made within three weeks from today

by each defendant separately in an affidavit with supporting documents.

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5. Mr. Bagla states that proceedings were served day before

yesterday and waives service of writ of summons. Mr. Bagla states that

within one week Mr. Punit Ghobade will file vakalatnama under advise to

plaintiff's advocate. Statement accepted.

6. Stand over to 31st March, 2021 for directions.

(K.R. SHRIRAM, J.)

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