JUDGMENT

1. This commercial division summary suit is instituted for recovery of a sum of Rs.7,24,94,348/- along with further interest at the rate of 15% p.a. from the month of November, 2020 till payment and/or realization.

2. Shorn of unnecessary details, the background facts can be stated as under:

(a) The plaintiff is a registered partnership firm. The plaintiff developed a project 'Jade Gardens' at Gandhi Nagar, Bandra East, Mumbai. The defendant evinced interest to purchase a flat in 'M' Wing of the said project. An agreement for sale came to be executed between the plaintiff and defendant and Middle Income Group III Co-operative Housing Society, as a confirming party, whereunder the defendant agreed to purchase Flat No.403 'M' Wing, Jade Gardens ('the suit flat') for a consideration of Rs.8,01,00,000/-. An earnest amount of Rs.60,00,000/- was already paid by the defendant. Under the said agreement, the defendant agreed to pay the balance consideration in three installments. First two of Rs.2,50,00,000/- and Rs.8,01,000/- payable on or before 31st December, 2017, and last of Rs.4,82,99,000/- on or before 31st January, 2018. It was further provided that in the event of delay or default in making the payment of installments, the plaintiff would be entitled to charge interest at the rate of 15% p.a.

(b) The plaintiff asserts the defendant did not pay the amount in accordance with the schedule stipulated in the Agreement for Sale. By 31st March, 2018, the defendant paid a sum of Rs.2,58,01,000/-, only towards the balance consideration. As the partners of the plaintiff had cordial relations with Mr. Amit Patil, the brother of the defendant, pursuant to repeated request of the defendant, the plaintiff delivered possession of the suit flat to the defendant around the month of February/Mach, 2018.

(c) The defendant sought time to pay the balance consideration on one or the other pretext. Eventually on 5th October, 2018, the plaintiff addressed a letter to the defendant calling upon the defendant to pay the balance consideration along with interest. In response thereto, Mr. Amit Patil addressed an e-mail and assured the plaintiff that there was no need to resort to legal proceedings. However, the defendant failed to pay the balance consideration and instead started paying maintenance directly to the society. Having realized the design of the defendant, the plaintiff claimed to have addressed a legal notice on 17th February, 2020 calling upon the defendant to pay the balance consideration along with accrued interest thereon. Despite service of notice, the defendant neither complied with the demand nor gave reply thereto. Hence, this suit.

3. The writ of summons was served on the defendant. Upon the defendant entering appearance, the plaintiff took out the Summons for Judgment.

4. An affidavit-in-reply is filed on behalf of the defendant seeking an unconditional leave to defend the suit. The defendant contends that the suit is mala fide and suffers from the vice of suggestio falsi and suppressio veri. It has been instituted with a view to wreck vengeance on account of the disputes, which arose between Mr. Jayant Shah, one of the partners of the plaintiff, and Mr. Amit Patil, the brother of the defendant, who had multiple financial dealings. The defendant assailed the tenability of the summary suit on the ground that the suit is essentially for specific performance and does not fall within the ambit of Order XXXVII of the Code.

5. The substance of the resistance put forth by the defendant is that the transaction between the parties is not the one which is apparently evidenced by the Agreement for Sale dated 5th October, 2017. The defendant contends that the real consideration for the suit flat was of Rs.5 Crore only. The said flat was conveyed to the defendant as a part of a financial dealing between Mr. Jayant Shah and Mr. Amit Patil. Apart from the consideration of Rs.3,18,01,000/-, which the plaintiff admits to have received, a sum of Rs.