SJ-64-2021 IN SS-02-2021.DOC

Tandale

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUMMONS FOR JUDGMENT NO. 64 OF 2021

IN

SUMMARY SUIT NO. 02 OF 2021

I. N. Halkara H.U.F.

Through its Karta Mr. Indarmal N. Halkara

… Applicant/

Plaintiff

Versus

Pradip Bastimal Chopra

… Defendant

Mr. Farhan Dubhash a/w Mr. Vishal Kanade, Kinjal Upadhyay i/by

Jayesh R. Vyas for the Plaintiff.

Mr. Chirag Mody a/w Mr. Yash Momaya, Mr. S. M. Seegarla, Mr

Swapnil Shikhare i/by RMG LAW Associates for the Defendant.

CORAM:N. J. JAMADAR, J.

RESERVED ON : 21^st DECEMBER, 2021

PRONOUNCED ON : 2^nd FEBRUARY, 2022

ORDER :-

1.

This commercial division summary suit is instituted for

recovery of aggregate amount of Rs.17,84,34,432/- along with further

interest @ 18% per annum on the principal amount of Rs.4,00,00,000/-

from the date of the suit.

2.

The material averments in the plaint, can be stated in brief

as under :-

(a)

The plaintiff is a Hindu Undivided Family. Mr. Indarmal N.

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Halkara is its Karta. The plaintiff - Karta is a Director and Shareholder

of a Company, ‘Halkara Builders Private Limited’ (“Halkara”). The

defendant is a partner of a registered partnership firm, M/s. Cosmos

Landmarks (“Cosmos”). Both Halkara and Cosmos deal in the business

of real estate development.

(b)

On 3^rd April 2010, an agreement was executed between

Halkara and Cosmos for the redevelopment of a SRA Project at Forjett

street, Mumbai. At the request of the defendant, to enable him to tide

over the financial constraints, the plaintiff had advanced to the

defendant a friendly loan of Rs.4,00,00,000/-. The plaintiff was given

to understand that the defendant would use the said fund to meet its

contractual obligations under the agreement dated 3^rd April 2010. It

was agreed that the said loan amount would carry interest @ 18% per

annum. The plaintiff advanced the said amount under the cheque dated

28^th January 2013 drawn on Corporation Bank (Now Union Bank of

India). Upon the amount being credited in the account of the

defendant, the later credited the said amount of Rs.4,00,00,000/- in the

account of Cosmos on 31^st January 2013. And on the very day Cosmos,

in turn, transferred the said amount in the account of Halkara, to

finance the contractual obligations of Cosmos.

(c)

Towards repayment of the said amount the defendant had

executed a promissory note dated 28^th January 2013 for the sum of

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Rs.4,00,00,000/- payable on demand, with interest @ 1.5% per month

i.e. 18% per annum. The defendant had also drawn three cheques;

bearing No. 049998 for Rs.12,20,000/- payable on 31^st March 2013, No.

049999 for Rs.23,80,000/- payable on 27^th July 2013, towards interest

and, No.049981 towards principal loan amount of Rs.4,00,00,000/-,

payable on 27^th July 2013. All the three cheques were returned un-

encashed on presentment. Upon being apprised, the defendant sought

time citing financial constraints and assured to repay the loan amount

alongwith accrued interest thereon. The defendant thus confirmed the

balance by executing balance confirmation letters every year, the first

being on 1^st April 2013 and the last being 1^st April 2018.

(d)

In the meanwhile, disputes arose between Halkara and

Cosmos. Thus Cosmos invoked arbitration. Halkara in its counter claim

made a claim of Rs.4,00,00,000/- and the accrued interest thereon.

Cosmos questioned the jurisdiction of the Abitral Tribunal as regards the

said claim. Thus, on 28^th March, 2021, the plaintiff addressed a legal

notice to the defendant, calling upon the defendant to repay the sum of

Rs.4,00,00,000/- along with accrued interest thereon. The defendant

falsely denied the liability. The plaintiff thus initiated mandatory pre-

institution mediation under Section 12A of the Commercial Courts Act,

2015. As the defendant failed to appear, a Non Starter Report was filed.

In the meanwhile, Halkara made a st