Mehul Jadavji Shah vs Paras Gopal Enterprises And 2 Ors
2022 Latest Caselaw 9055 Bom

                                                                                       15-sj-42-2019.doc




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

                                     COMMERCIAL SUMMARY SUIT NO.469 OF 2019

                      Mehul Jadavji Shah                                     ...Plaintiff
                            vs.
                      Paras Gopal Enterprises and Others                     ...Defendants

VISHAL                Mr. Abhishek Adke a/w. Ms. Vibha Joshi, for the Plaintiff
SUBHASH               Mr. Yakshay Chheda, for the Defendants.
PAREKAR
Digitally signed by
VISHAL SUBHASH
                                                 CORAM :     N. J. JAMADAR, J.
PAREKAR
Date: 2022.09.14                                 DATE :      SEPTEMBER 12, 2022
14:20:51 +0530



                      P.C.:

                      1.       The suit is listed for ex-parte decree.



                      2.       This suit is for recovery of an amount of Rs. 1,31,70,567/-

                      along with further interest @ 18% p.a. from 16 th October, 2018 till

                      payment and/or realization.



                      3.       The plaintiff claimed to have advanced a loan of Rs. 1 Crore to

                      the defendants vide cheque dated 8th February, 2008. Towards the

                      repayment of the said amount, the defendants had allegedly drawn

                      a cheque for a sum of Rs. 1,26,91,345/- on Canara Bank, Dadar (w)

                      Branch payable on 31st July, 2018. The cheque was returned un-

                      encashed on account of insufficiency of funds. Thus, Summary Suit

                      came to be instituted under Order XXXVII of the Code of Civil

                      Procedure, 1908 based on the negotiable instrument as well as

                      Vishal Parekar, P.A.                                                          ...1
                                                               15-sj-42-2019.doc




balance confirmation.



4.       The defendants sought unconditional leave to defend the suit.

By an order dated 7th June, 2022, this Court was persuaded to

grant leave to defend on the condition of deposit of a sum of Rs.

1,31,70,567/-. Upon deposit, the defendants were permitted to file

written statement within a period of two weeks of the said deposit.

In the event of non deposit, liberty was granted to the plaintiff to

apply for a decree on obtaining a Non Deposit Certificate.



5.       The plaintiff has moved the Court armed with a Non-Deposit

Certificate issued by the Prothonotary dated 12th August, 2022.



6.       The learned counsel for the defendants submitted that the

defendants have neither deposited the amount nor any appeal is

preferred against the aforesaid order granting conditional leave to

defend the suit. Further, the learned counsel for the defendants

fairly submitted that the defendants did not challenge the existence

or genuineness of the documents on which the suit is based.



7.        In view of the provisions contained in Sub Rule (6) of Rule 3

of Order XXXVII of the Code, upon failure of the defendants to



Vishal Parekar, P.A.                                                       ...2
                                                                 15-sj-42-2019.doc




comply with the condition, subject to which leave is granted, the

plaintiff forthwith becomes entitled to a judgment.

         Thus, the following order.



                                   ORDER

1]      The suit stands decreed.

2]      The defendants do pay an amount of Rs. 1,31,70,567/- to the

plaintiff along with further interest @ 18% p.a. on the principal

amount of Rs. 1 Crore from the date of institution of the suit till

payment and/or realization.

2] The defendants do pay the costs of the suit to the plaintiff.

3] The plaintiff is entitled to refund of Court frees, if any, in

accordance with rules.

4] Decree be drawn and sealed expeditiously.

                                            (N. J. JAMADAR, J.)




Vishal Parekar, P.A.                                                         ...3