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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Arif S. Doctor, J.
Antara Housing LLP - Appellant
Versus
M/s. Primeland Constructions - Respondent
Commercial Summary Suit No. 20 of 2022, Interim Application (L) No. 10318 of 2022
Decided On : 02-02-2023
Appeal - Commercial Summary Suit - Section 13 of the Commercial Courts Act - Order XXXVII of the Code of Civil Procedure, 1908
Fact of the Case:
The Plaintiff filed a Commercial Summary Suit against the Defendant for non-payment of a sum of Rs.39,12,43,595. The Defendant had issued post-dated cheques which were returned dishonoured, and admitted their liability in a letter. The Court had granted conditional leave to defend the suit, subject to the deposit of the said amount within six weeks, which the Defendant failed to comply with.
Finding of the Court:
The Court found that the Defendant failed to comply with the conditional order of deposit, and the Plaintiff was entitled to a decree as per the provisions of Order XXXVII of the Code of Civil Procedure, 1908.
Issues: The main issue was the Defendant's failure to make the payment as per the Memorandum of Understanding, leading to the filing of the Commercial Summary Suit by the Plaintiff.
Ratio Decidendi: The Court held that under Sub-rule (6) of Rule 3 of Order XXXVII, on the failure of the Defendant to comply with the court's directions, the Plaintiff becomes entitled to a judgment. The Court also considered the justifiability of the claim and its admissibility under the provisions of Order XXXVII before reaching the decision.
Final Decision: The Court decreed the suit in favor of the Plaintiff, ordering the Defendant to pay the sum of Rs.39,12,43,595 along with interest at the rate of 12% per annum, and entitled the Plaintiff to the refund of Court Fees, if any.
Based on the provided legal document, the key points are as follows:
The Court has established that failure by the Defendant to comply with the court's directions under Order XXXVII of the Civil Procedure Code entitles the Plaintiff to a judgment in their favor [judgement_subject].
The Plaintiff filed a Commercial Summary Suit against the Defendant for non-payment of Rs.39,12,43,595, supported by dishonoured post-dated cheques and the Defendant's admission of liability in a letter [fact_of_the_case] (!) (!) .
The Court granted conditional leave to defend the suit, requiring the Defendant to deposit a specified amount within six weeks, which the Defendant failed to do [order_3].
The Court found that the Defendant did not comply with the deposit order, and as a result, the Plaintiff became entitled to a decree under Order XXXVII of the CPC [finding_of_the_court] (!) .
The Court held that, due to the Defendant's failure to deposit the amount within the stipulated period and the absence of any stay from an appeal court, the Plaintiff is entitled to a decree for the recovery of the specified sum along with interest at 12% per annum from the date of dishonour (!) .
The Court decreed the suit in favor of the Plaintiff, ordering the Defendant to pay Rs.39,12,43,595 along with interest, and to refund Court Fees if applicable (!) (!) (!) .
The original documents were ordered to be returned to the Plaintiff's Advocate after compliance with all necessary formalities (!) .
These points highlight the Court's reasoning and final decision, emphasizing the importance of compliance with court orders under Order XXXVII for obtaining a judgment in summary proceedings.
JUDGMENT
Arif S. Doctor, J. - Heard learned Counsel.
2. At the outset, the learned Counsel appearing on behalf of the Defendant sought time on the ground that the Defendant had filed an appeal against the order dated 03rd October 2022, by which the Defendant had been granted conditional leave to defend the present Commercial Summary Suit.
3. The learned Counsel appearing on behalf of the Plaintiff vehemently opposed this request and submitted that even on the last occasion the same request had been made. Additionally, the learned Counsel appearing on behalf of the Plaintiff submitted that an appeal from an order granting conditional leave to defend in a Summons for Judgment filed in a Commercial Summary Suit was not maintainable and placed reliance upon a judgment of this Hon'ble Court in the case of SKIL-Himachal Infrastructure & Tourism Ltd. & Ors. Vs. IL & FS Financial Services Ltd. Commercial Appeal (L) No.95 of 2020 in Summons for Judgment No.83 of 2019 in Commercial Summary Suit No.923 of 2019 with Interim Application No.1801 of 2020 in Commercial Appeal (L) No.95 of 2020. (G. S. Patel & Gauri Godse, JJ.). He invites my attention to Paragraph 52.1, which reads thus :-
'52.1 An appeal from an order granting conditional leave to defend in a Summons for Judgment in a Commercial Summary Suit is not maintainable in view of Section 13 of the Commercial Courts Act.'
4. He submitted that thus there was no impediment on this Hon'ble Court for taking up the Commercial Summary Suit for hearing and passing of a decree under the provisions of Order XXXVII of the Code of Civil Procedure, 1908.
5. Without commenting on the maintainability of the appeal, that has been filed presently, there is no stay granted by the appeal court. Admittedly, the Defendant has not complied with the order dated 03rd October 2022 nor has the Defendant obtained any stay from this Court preceding with the present Suit.
6. This Court had already on a previous occasion granted the Defendant time of two weeks in view of the pendency of the appeal. Thus, today there is no reason for not proceeding with the matter.
7. The material facts in the plaint are as follows :-
(i) Both, the Plaintiff and the Defendant are engaged in the business of construction and property development within the State of Maharashtra. The Defendant had approached the Plaintiff and informed the Plaintiff that the Defendant had acquired certain rights in respect of the immovable property situated at Borivali, being a piece and parcel of land bearing Survey No.42-A (Part), CTS No.874-B (Part) and CTS No.874-D (Part) ('the said land'). The Plaintiff and the Defendant had entered into a Joint Development Agreement dated 31st August 2019 ('the said JDA'), whereby the parties to the said JDA had agreed to jointly develop a portion of the said land.
(ii) The Plaintiff, from time to time, had spent various monies for the development of the said land and performance of the said JDA. As per the terms and conditions of the said JDA, in addition to Plaintiff paying a sum of Rs.25,00,00,000/- (Rupees Twenty Five Crores Only) towards the security deposit charges to the Plaintiff, the Plaintiff was also required to spend various amounts on the development of the said land.
(iii) The Plaintiff had, from time to time, spent various monies for the development of the said land and performance of the said JDA. However, the Defendant communicated to the Plaintiff that on account of certain unavoidable internal circumstances faced by the Defendant, the Defendant would be unable to complete and fulfill the compliances and commitments made by the Defendant under the said JDA. The amounts were to be paid by the Defendant to the Plaintiff in the following manner :-
(a) Rs.10,00,00,000/- (Rupees Ten Crores only) on or before 15th September 2021;
(b) Rs.10,00,00,000/- (Rupees Ten Crores only) on or before 30th September 2021; and
(c) Rs.19,12,43,595/- (Rupees Nineteen Crores Twelve Lakhs Forty Three Thousand Five Hundred Ninety Fi
AI
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