sj-24-2021.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUMMONS FOR JUDGMENT NO.24 OF 2021

IN

COMMERCIAL SUMMARY SUIT (L) NO.10938 OF 2021

Sacha Finance and Developers Co.

...Plaintiff

vs.

Jayant Bhavanji Soni (since deceased)

Through Legal Heirs and Anr.

...Defendants

Ms. Sunanda Kumbhat, for the Plaintiff

Mr. Anuj Narula i/b. M/s. Jhangiani Narula and Associates, for the

Defendants.

CORAM :

N.J. JAMADAR, J.

RESERVED ON :

JULY 28, 2022

PRONOUNCED ON :

NOVEMBER 9, 2022

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JUDGMENT:

1.

This Commercial Division Summary Suit is instituted for

recovery of a sum of Rs. 1,10,15,890/- along with further interest @

18% p.a. on the sum of Rs. 1 Crore, being the amount covered by the

dishonoured cheques on which the suit is instituted.

2.

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

under:-

The plaintiff is a partnership firm registered under the

Partnership Act, 1932. Jayant Soni (the deceased defendant No. 1)

was the sole proprietor of Joy Builders. Defendant No. 2 Bhavin is

Vishal Parekar

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the son of deceased defendant No. 1 and the authorized

representative / mandate holder of Joy Builders. Post demise of

defendant No. 1, defendant No. 1A to 1C have been impleaded as the

legal representatives of deceased defendant No. 1 apart from

defendant No. 2.

3.

The deceased defendant No. 1 and defendant No. 2 had

approached the plaintiff to advance money to finance their then on-

going projects of real estate development. The defendants had

assured to repay the loan amount along with interest @ 12% p.a. and

one time compensation. Pursuant to the representations of the

deceased defendant No. 1, and defendant No. 2, the plaintiff had paid

a sum of Rs. 50 lakhs to the defendants by a cheque bearing No.

467423 payable on 18^th July, 2014, against a post dated cheque

drawn by the defendants for the said amount and also a bill of

exchange drawn by defendant No. 2 and accepted by Joy Builders.

Initially, the defendant Nos. 1 and 2 paid interest at the agreed rate

of 12% p.a. A further sum of Rs. 15 lakhs was advanced by the

plaintiff to the defendant by a cheque bearing No. 000216 payable

on 1^st October, 2015. Thereupon, the defendants took back the post

dated cheque drawn for Rs. 50 lakhs at the time of availing the first

tranche of loan and issued another post dated cheque for an amount

Vishal Parekar

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of Rs. 65 lakhs. In addition a promissory note for a sum of Rs. 15

lakhs was also issued in favour of the plaintiff.

4.

As the defendants committed default in repayment,

negotiations were held between the plaintiff and defendant Nos. 1

and 2 in the presence of Mr. Lakhi Batra, the go-between. The

defendants agreed to pay interest @ 15% p.a instead of 12% p.a. and

replace the post dated cheques. The defendants did pay quarterly

interest @ 15% p.a from April, 2017 to June, 2019 and also replaced

the cheques drawn towards the repayment of the principal amount.

Upon being called upon to repay the principal amount and the

interest accrued thereon and compensation, as agreed, the

defendants had issued two cheques bearing NO. 738578, for the sum

of Rs. 65 lakhs, and No. 217657, for the sum of Rs. 30 lakhs, payable

on 21^st December, 2019 towards the principal amount and the

compensation. Both the cheques were, however, returned un-

encashed on presentment.

5.

Upon being approached, the defendants issued a fresh cheque

bearing No. 739393 for an amount of Rs. 65 lakhs payable on 10^th

July, 2020. The defendants had also delivered 8 cheques for various

amounts along with letter dated 7^th March, 2020. The validity

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period of first two cheques expired. After a rigorous follow up, the

defendants agreed to repay the principal amount along with

compensation of Rs. 30 lakhs a