Mira Construction vs Kavya Mira Realty And 2 Ors
2022 Latest Caselaw 5143 Bom

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                            ORDINARY ORIGINAL CIVIL JURISDICTION

                                           SUMMONS FOR JUDGMENT NO. 29 OF 2019

                                                                   IN

                                        COMMERCIAL SUMMARY SUIT NO. 375 OF 2019



                        Mira Construction                                       ...     Plaintiff
                                 vs.
                        Kavya Mira Realty and 2 Ors.                            ...     Defendants


                        Mr. Nikhil Rajeshirke for the Plaintiff.


                                                                    CORAM : A. K. MENON, J.

DATED : 8th JUNE, 2022 P.C. :

1. In a suit filed for recovery of a sum of Rs. 10,76,34,097/- towards dues

of the plaintiff who is admittedly partner of defendant no. 1 and said to be

payable to the plaintiff on his retirement, the plaintiff seeks a decree by this

Summons for Judgment.

2. Learned counsel for the plaintiff has pointed out that under a deed of

retirement dated 31st December, 2015 the plaintiff retired from the firm and

under clause 3 of the deed the firm agreed to pay to the retired partner a sum

of Rs, 9,00,00,000/-. The deed also mentions cheques amounting to Rs.

4,00,00,000/- and Rs. 5,00,00,000/- respectively including the amount Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date: 31-SJ-29-2019-COMSS-375-2019.odt 1/5 2022.06.10 18:14:47 +0530 rrpillai standing to the credit of the plaintiff in the books of defendant no.1. as on

31st December, 2015 said to be payable by way of full and final settlement.

The amount has not been paid.

3. Later it appears that on 29 th January, 2016 a confirmation of the

amount due has been issued by the defendants who have executed the said

confirmation, copy of which is at Exhibit C. By this confirmation the

continuing partner in defendant confirmed liability to pay to the plaintiff the

aforesaid amount vide these two cheques. Both cheques have been

dishonoured. Copies of the dishonored cheques are at Exhibit D. Learned

counsel for the plaintiff therefore submits that the plaintiff is entitled to

receive a sum of Rs. 9,00,00,000/- and interest as computed is set out in

particulars of claim at Exhibit P. Interest has been computed @ 18% per

annum in view of the agreement between the parties and as embodied in the

confirmation dated 29th January, 2016. Thus the plaintiff claims a decree in

the aforesaid amount.

4. On behalf of the defendant summons is resisted on the strength of

affidavit in reply filed by one Kajal Nimesh Vora defendant no. 3 for

defendant nos. 1 and 2. Affidavit sets out that there is no arbitration

agreement between the parties, however that objection does not survive since

an application under section 8 of the Arbitration and Conciliation Act, 1996

has been rejected. That having attained finality, the suit is now liable to be

proceeded with. It appears that an appeal has been filed but admittedly there

31-SJ-29-2019-COMSS-375-2019.odt 2/5 rrpillai is no stay to the suit and hence the suit must proceed. Objection is also taken

on the ground that a summary suit cannot be filed because the dispute

pertains to partnership business and that the claim of the applicant / plaintiff

is secured by certain immovable documents of properties which are retained

by escrow agents who are two solicitors as set out in Exhibit '4' to the affidavit

in reply.

5. It is further contended by the learned counsel for the defendant that

the amount being secured and property being valued at more than Rs.10

crores, there is no justification in filing the present suit or filing decree in

terms of the plaint. It is also her contention that after execution of the

retirement deed a sum of Rs. 2,24,00,000/- has already been paid over as

such principal sum is only Rs.6,76,00,000/- and therefore there is no

occasion to seek a decree in a sum of Rs. 10,76,34,097/-. It is also contended

that interest is not payable that the balance principal sum being only

Rs.6,76,00,000/- and the escrow agents being in possession of documents of

title of immovable property worth more than Rs. 10 crores, there is no

justification in seeking to prosecute the present suit. She states that it is open

to the plaintiff to approach the escrow agent and seek custody of the original

documents as security. That being a secure claim, there is no justification in

seeking a decree.

6. Having heard the learned counsel for the parties I find that the amount

of the claim is admitted inasmuch as the retirement deed clearly provides for

31-SJ-29-2019-COMSS-375-2019.odt 3/5 rrpillai payment of Rs. 9 crores. It has been acted upon by issuing two cheques.

These cheques have been dishonoured for want of sufficient funds as evident

from the copies at Exhibit D and Memo of return of cheques at Exhibit E. The

liability is undoubtedly admitted. Obligation to pay has been acted upon by

making remittance of Rs. 2,24,00,000/-. The balance is now due. Interest is

has been claimed at 18% based on agreement in writing and the particulars

of claim sets out the computation of interest after giving the credit for the part

payment received. The computation per se is not in dispute. It is the

defendants contention that compound interest has being charged. That does

not appear to be correct since particulars of claim computes interest

separately on Rs. 2,24,00,000/- for the period 1 st April, 2016 to 16 th July,

2016 and on the balance of Rs.6,76,00,000/- from 1 st April, 2016 to 31st

March, 2017.

7. The computation of interest does not set out the principal amount on

which interest is claimed but it is admitted that a sum of Rs.6,76,00,000/- is

due and payable and that interest would be payable @ 18% on the aforesaid

amount of Rs.6,76,00,000/-. To that extent I find that there is no defence

whatsoever. Accordingly, I pass the following order :

(i) Subject to deposit of Rs.6,76,00,000/- within a period of four weeks

from today the defendant is granted conditional leave to defend the suit.

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 (ii)     If amount of Rs.6,76,00,000/- is deposited as aforesaid, the defendant

will be entitled to file a written statement within a further period of four

weeks.

(iii) If the amount is not deposited the plaintiff is entitled to a decree and is

at liberty to move the court after obtaining certificate of non deposit on the

basis of which the suit is filed.

(iv) If the amount is deposited, it shall be invested by the Prothonotary and

Senior Master for a period of one year in a nationalised bank and shall be re-

newed each year till disposal of the suit.

(v) Summons for judgment disposed in the above terms.

                                                                 (A. K. MENON, J.)




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