Sunil Biyani vs R.B.Mining And Company And 4 Ors
2021 Latest Caselaw 15556 Bom

                                                                          18-ial-20000-2021 comss-63-2021.doc




                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     ORDINARY ORIGINAL CIVIL JURISDICTION

         Digitally
         signed by               INTERIM APPLICATION (LODG.) NO. 20000 OF 2021
                                                      IN
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR  Date:
         2021.10.30                COMMERCIAL SUMMARY SUIT NO. 63 OF 2021
         20:51:47
         +0530
                      Sunil Biyani                             ...Applicant

                      In the matter between :

                      Sunil Biyani                             .. Plaintiff
                                 vs.
                      M/s. R.B. Mining and Co.
                      & Ors.                                   ...Defendants

                      Mr. Yuvraj Choksy a/w. Mr. Luckyraj Indorkar i/b Argus Partners
                      for plaintiff/applicant.
                      Mr. Vishal Shukla a/w Mr. Ghanshyam Upadhyay, Mr. Raj Kumar
                      Mishra i/b Law Juris for defendants.

                                             CORAM : N. J. JAMADAR, JJ.

DATE : 28th OCTOBER , 2021 P.C.:

1. This application is preferred for attachment before judgment

under Order XXXVIII of the Code of Civil Procedure, 1908.

2. The plaintiff-applicant has instituted a summary suit for

recovery of a sum of Rs.25 Crore alongwith interest @ 12% per

annum from 23rd November 2020 to the date of institution of the

suit and further interest at the said rate from the date of the suit

till realization of the amount, on the basis of admission of liability

in the instruments in writing.

Shraddha Talekar, PS 1/4 18-ial-20000-2021 comss-63-2021.doc

3. When the application for interim relief was heard, a

contention was raised on behalf of the defendants that there is no

material in support of the claim that the plaintiff/applicant had

advanced the huge amount of Rs.22,16,20,000/-. Thereupon, the

plaintiff sought liberty to fle an additional affdavit in support of

the interim application.

4. On 21st October 2021, the plaintiff tendered an additional

affdavit in support of the claim. The averments in paragraph 3 of

the additional affdavit read as under :

3. As set out in the captioned Interim Application and Summary Suit, from November 2015 to March 2018, an amount of Rs.22,16,20,000/- (Rupees Twenty Two Crore Sixteen Lac and Twenty Thousand only)("said Amount") was made available to the Defendants pursuant to the Agreement between the Parties that I would be inducted as a partner and would be entitled to 50% share in the profts of Defendant No.1 (Firm). Details of the said amount is as follows :

                                      Particulars            Amount (in Rs.)
                  1.         Through RTGS                   6,40,00,000/-
                  2.         Cash payment                   10,26,00,000/-
                  3.         Charges towards rend and       1,83,79,000/-
                             commission of Excavators
                  4.         Towards Excavators             1,00,00,000/-
                             purchased by Defendant No.1
                             Firm from the Plaintiff
                  5.         Settled/Agreed Interest and    2,66,41,000/-
                             Profts
                             Total                          22,16,20,000/-

5. On 21st October 2021, the matter was stood over to 25 th

Shraddha Talekar, PS 2/4 18-ial-20000-2021 comss-63-2021.doc

October 2021.

6. Today, again an adjournment is sought on behalf of the

defendants.

7. In the backdrop of the nature of the controversy, especially,

the fact that the defendants claimed to have received a sum of

Rs.2 Crore and few lakhs only, at this stage, it may be expedient

to frst direct the defendants to fle an affdavit of disclosure so

that the prayers in the application for attachment before judgment

can be properly appreciated.

8. Hence, there shall be an ad-interim order in terms of prayer

clause (c) of the application, which reads as under :-

"(c) Defendants be directed to disclose on oath all their respective properties and assets, both movable and immovable, receivables, including income from rent and Bank accounts and lockers within such time as may be fxed by this Hon'ble Court; Defendants be directed to forthwith disclose on oath all particulars of its receivables from third parties, including group companies, subsidiaries, associate companies, sister concerns etc., and upon such disclosure of third parties, this Hon'ble Court direct the third parties to deposit the sums owed to Defendants in this Hon'ble Court."

9. Let the affdavit of disclosure be fled and its copy served on

the plaintiff, on or before 18th November 2021.

10. List the application on 22nd November 2021.

Shraddha Talekar, PS 3/4 18-ial-20000-2021 comss-63-2021.doc

(N. J. JAMADAR, J.)

Shraddha Talekar, PS 4/4