Bombay High Court
Idbi Trusteeship Services Limited vs Jagdish Bhagwandas Ahuja And Anr on 12 December, 2023
Author: Abhay Ahuja
Bench: Abhay Ahuja
22-COMSS-90-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUMMARY SUIT NO.90 OF 2022
IDBI TRUSTEESHIP SERVICES LIMITED )...PLAINTIFF
V/s.
JAGDISH BHAGWANDAS AHUJA & ANR. )...DEFENDANTS
Mr.Ryan D'Souza a/w. Mr.Parag Kabadi, Mr.Anuj Sarla i/by DSK Legal,
Advocate for the Plaintiff.
None for the Defendants.
CORAM : ABHAY AHUJA, J.
DATE : 12th DECEMBER 2023
P.C. :
1. Pursuant to earlier orders of this Court, the learned Counsel for
the Plaintiff has placed before this Court decision of a Single Judge of
this Court (Coram : Kamal Khata, J.) in the case of India Realty
Excellence Fund II LLP vs. Gautam Jagdish Ahuja and Another 1 where
the learned Single Judge has, after considering a decision of a Division
Bench of this Court in the case of Om Prakash Nihalani and Another vs.
S.M.S. Thakur2 as well as the decision of the Madras High Court in the
case of Official Assignee, High Court, Madras and Others vs.
1 Summons for Judgment No.4 of 2021 in Commercial Summary Suit No.317 of 2020 dated
29.8.2023
2 2009 (2) Mh.L.J. page 905
22-COMSS-90-2022.doc
Mangalambai and Others3 had observed that in the case of a
proceeding seeking a money decree, the provisions of Section 68(1)(d)
of the Presidency Towns Insolvency Act, 1909, would not apply and the
Official Assignee would not be a necessary party to the suit as the suit
did not relate to the property of the Insolvent.
2. It is submitted that the facts in the present case are similar to the
facts in the case of India Realty Excellence Fund II LLP vs. Gautam
Jagdish Ahuja and Another (supra) where it was held that Section
68(1)(d) of the Presidency Towns Insolvency Act, 1909 is not attracted
as the Plaintiff is seeking a money decree which does not relate to the
property of the Defendant, and therefore, the Official Assignee is not
required to be made a necessary party.
3. From a perusal of the said judgment in the case of the India
Realty Excellence Fund II LLP vs. Gautam Jagdish Ahuja and Another
(supra) as well as the decision of a Division Bench of this Court in the
case of Om Prakash Nihalani and Another vs. S M S Thakur (supra) as
well as in the case of Chandrakant Devji vs. Messrs. Narottamdas
Amarchand4 and the Madras High Court decision in the case of Official
Assignee, High Court, Madras and Others vs. Mangalambai and Others
3 1980 SCC OnLine Mad 48 : AIR 1980 Mad 200
4 AIR 1941 Bom 293
22-COMSS-90-2022.doc
(supra), I am of the view that it would not be necessary to implead the
Official Assignee as a necessary party to the suit as the suit seeks a
money decree and does not relate to the property or estate of the
Insolvent.
4. Mr.D'Souza, learned Counsel for the Plaintiff, submits that
although the writ of summons was served upon the Defendant no.1 on
4th September 2023 through Arthur Road Jail as the Defendant no.1 is
in prison and the Defendant no.2 has been served by substituted service
by publication dated 5th September 2023 in accordance with orders of
this Court, as the Defendant no.2 "left without instructions" from the
address as contained in the Deed of Guarantee, neither of the
Defendants have entered appearance within ten days from the service
upon them and therefore in accordance with Order XXXVII Rule 2(3) of
the Code of Civil Procedure, 1908, the allegations in the plaint have
been deemed to be admitted and the Plaintiff is entitled to decree as
prayed for along with interest.
5. Accordingly, list this matter on 23rd January 2024.
6. Let the Plaintiff furnish Affidavit of Evidence and compilation of
documents by the next date.
(ABHAY AHUJA, J.)
