Bombay High Court
Safa And Sons Exports Pvt. Ltd vs Sree D K Jewellers Thr Its ... on 1 February, 2022
Bench: Nitin W. Sambre
(22 & 23)-WP-424 & 425-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
BALAJI
CIVIL APPELLATE JURISDICTION
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
WRIT PETITION NO.424 OF 2022
2022.02.01
16:20:42
+0530
Safa and Sons Exports Pvt. Ltd. ..Petitioner
Versus
Sree D. K. Jewellers
Through its Proprietor ..Respondent
WITH
WRIT PETITION NO.425 OF 2022
Mr. Sameer Fazle Khan ..Petitioner
Versus
Sree D. K. Jewellers ..Respondent
Mr. Mehul Shah a/w Chaitali Jadhav, for the Petitioner in both
Petitions.
Ms. Leena D. Sapra, for the Respondent in both Petitions.
CORAM : NITIN W. SAMBRE, J.
DATE : 1st FEBRUARY, 2022
P.C.
1. In Summary Suit No.91 of 2017, Summons for
Judgment No.124 of 2017 was allowed vide impugned order dated
4th October, 2021 wherein the petitioner/defendant was put to
following conditions :-
"2) Leave to defend the Suit to the defendant is
granted conditionally i.e. Defendant is permitted to file
written statement subject to depositing the amount of
Rs.44,47,400/- with further interest @ 15% p.a. on the
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(22 & 23)-WP-424 & 425-22.doc.
sum of Rs.31,50,000/- in the Court within two months
from the date of this order.
3) After payment of an amount of Rs.44,47,400/- as
ordered, the Registrar of this Court is directed to take
necessary steps to convert the suit from Summary to
Short cause.
4) On depositing the aforesaid amount of
Rs.44,47,400/-, Registrar (Civil) is directed to invest
the said amount in any Nationalized Bank for initial
period of One year and seek further directions of the
Court as and when the suit comes for hearing.
5) If the above condition is not complied by the
defendant, then plaintiff shall be at liberty to take steps
for further orders."
2. The submissions of learned counsel for the petitioner are
that the Court has committed an error and failed to appreciate the
partnership entered into between nephew of the original plaintiff
and present petitioner and the amount which was received by the
petitioner as an investment in the said partnership towards the joint
business to be carried out. He would further claim that the amount
of interest cannot be ordered to be deposited while exercising
powers under Order XXXVII Rule 3 of the CPC.
3. In the aforesaid background, I have appreciated the
findings recorded by the Trial Court. It has come on record that an
amount was transferred to the account of present petitioner/
defendant through RTGS and he has categorically claimed having
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(22 & 23)-WP-424 & 425-22.doc.
received an amount of Rs.31,50,000/-, however, it is claimed that
the said amount is received towards investment in the business.
4. From the perusal of the partnership-deed which is
alleged to have been entered into between the petitioner and the
alleged nephew of the respondent/plaintiff, it is difficult to infer
that the said amount of Rs.31,50,000/- was received in partnership
towards investment.
5. As such, petitioner has failed to demonstrate that he has
defendable case. In my opinion, Court below was justified in
directing the petitioner to deposit the amount.
6. This Court has shown indulgence on 13 th January, 2022
directing the petitioner to deposit 50% of the principal amount
within six weeks. The said period expires on 23rd February, 2022.
7. This Court as such adjourns this matter for further
consideration on 24th February, 2022, by way of a last chance, so as
to test bonafides of the petitioner.
[NITIN W. SAMBRE, J.]
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