Madras High Court
Satyabrat Behera vs Mr.Ashok Agarwal on 9 September, 2022
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No. 79 of 2021
Satyabrat Behera ...Plaintiff
Vs.
1. Mr.Ashok Agarwal
2. Mrs. Anita Agarwal
3. M/s. Ashok Agawal
4. Shreyans Agarwal ...Defendants
Prayer : Petition filed under Order VII Rule 1 CPC read with Order XXXVII
Rule 2 of OS Rules, to pass a Judgment and Decree by
a) directing the defendants 1 to 3 jointly and severally to pay a sum of
Rs.9,05,64,656/- (Rupees Nine Crores Five Lakhs Sixty Four Lakhs Six
Hundred and Twenty Six Fifty Six only) with interest at 16% per annum on
Rs.6,93,00,000/- (Rupees Six Crores Ninety Three Lakhs only) from the date
of the plaint till repayment in full by passing a preliminary decree fixing up a
date for the same;
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b) Failing which pass a final decree directing the sale of the schedule
mentioned property and on realisation to pay the same to the plaintiff;
c) directing the defendants 1 to 3 personally to pay the balance amount
if any, after the sale of the schedule mentioned property; and
d) directing the defendants to pay the cost of the suit.
***
For plaintiff : Mr. R.I.Ramesh
For defendant : No appearance
ORDER
The suit had been filed for recovery of a sum of Rs.9,05,64,656/-
together with interest at 16% p.a., on Rs.6,93,00,000/- on the strength of a
mortgage said to have been executed by the first to third defendants on
11.04.2018 in favour of the plaintiff.
2. The defendants had been served with suit summons, but they had
taken a concious decision not to appear before this Court. Consequently,
taking note of their absence, the fourth defendant was set ex-parte on
27.04.2021 and the first and third defendants were set exparte on
27.01.2022. The plaintiff was directed to let in ex-parte evidence.
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3. The case of the plaintiff as seen in the plaint is that the first
deefndant was known to the plaintiff through various business transactions
and stated that he had entered into a one time settlement with State Bank of
India to settle the dues of a company called M/s. Ankit Ispat Pvt. Ltd. He
requested the plaintiff to help him in the payment of the one time settlement
of a sum of Rs.6,93,00,000/-. The plaintiff advanced the said amount and the
defendants 1 to 3 execute a mortgage with respect to the suit schedule
property.
4. The suit schedule property as described in the plaint was land and
building at Plot No.11, Old Door No.66, Taylors Road, Kilpauk, Chennai,
measuring 1987.42 sq.ft., with built up area of about 2,000 sq.ft. In view of
the amount advanced by the plaintiff as aforesaid, the first defendant avoided
further proceedings by the State Bank of India. A compromise memo was
recorded and the proceedings before the Debt Recovery Tribunal as against
the defendants came to an end.
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5. The plaintiff sought return of his money. The defendants did not
comply. The plaintiff issued a notice dated 17.01.2020 calling upon the
defendants to pay the amount under the mortgatge failing which it was stated
that he would enforce the mortgage. Reply was given on 02.02.2020 and a
further reply by the plaintiff was given on 10.02.2020. Realising that the
defendants would not honour their commitment under the mortgage, the
plaintiff had instituted this suit.
6. As stated, the defendants had set ex-parte.
7. To prove the claim of the plaintiff, Satyabrat Behera, was examined
as PW-1 and he filed his proof affdiavit narrating the facts and the averments
made in the plaint. Ex.B-1 is the statement showing the payments made to
State Bank of India by the first, second and third defendants. The demand
promissory note dated 11.04.2018 was marked as Ex.P-2 and the original
mortage deed dated 11.04.2018 registered as Document No. 887 of 2018 was
marked as Ex.P-3. The compromise effected by the defendants with the State
Bank of India was marked as Ex.P-4 and the order accepting such
compromise by the Debt Recovery Tribunal was marked as Ex.P-5. The
notices were marked as Exs.P-7 and P-9.
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8. In view of the evidence particularly in view of the fact that the
mortgage deed had been produced and marked as documents and the
defendants had taken a decision not to participate in the judicial proceedings,
which in fact makes it evident that they would be bound by any decree passed
by this Court a preliminary decree is passed directing the defendants to pay
the suit claim of Rs.9.05,64,656/- within a period of three months from this
date, namely, on or before 09.12.2022, failing which the plaintiff is at libertyt
to proceed further seeking enforcement of this decree by directing sale of the
schedule property in manner known to law. The plaintiff is also entitled to
costs of the litigation.
Vsg 09.09.2022
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C.V.KARTHIKEYAN, J.
Vsg
C.S.No. 79 of 2021
09.09.2022
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