The defendant agreed to sell a flat to the plaintiff but failed to implement the agreement. The plaintiff sued to recover the entire consideration paid. The court accepted the plaint averments as the defendant did not appear and decreed the suit for the recovery of the amount.
Suit decreed for recovery of Rs.9,83,776/- with interest at 18% per annum as prayed.
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37.ss.415.10
skt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMARY SUIT NO.415 OF 2010
Hemant N. Kothari @ Hemant N. Jain
..Plaintiff
-Versus-
Murlidharan Swamy
..Defendant
Mr.Neeta Solanki i/b Kiran Jain & Co. for the Plaintiff.
None for the Defendant.
CORAM : S.J. VAZIFDAR, J. DATE : 24TH AUGUST 2011.
P.C.
1 The suit is filed to recover an amount of Rs.9,83,776/- with interest at the rate of 18% per annum on the sum of Rs.8,90,660 paid by the plaintiff to the defendant.
2 By an agreement dated 31st March 2008, the defendant has agreed to sell a flat to the plaintiff. The plaintiff had paid the entire consideration as well as the stamp duty and the registration charges. The agreement was, however, not implemented. The fact that the plaintiff had made payment is admitted inter-alia by the defendant’s letter dated 28th May 2009. Subsequently, as the agreement could not be performed by the
defendant, he agreed to repay the amount paid by the plaintiff. The defendant issued a cheque in the sum of Rs.8,45,000/- which was dishonoured when presented. The defendant has failed to repay the amount despite the demands from the plaintiff.
2 The defendant has not filed any appearance. He failed to appear today. The plaintiff has tendered the compilation of documents in Court, which is taken on record and marked ‘A’ collectively. There is nothing on record that militates against the plaintiff’s claim. This is a fit case to accept the submissions and averments contained in the plaint.
3 In the circumstances, the suit is decreed as prayed. Costs to be quantified as per rules. Refund of court fees, if any, as per rules.
By an ad-interim order dated 2nd March 2010 in Notice of Motion No. 500 of 2010, the defendant was restrained by an injunction from selling or disposing of the said flat. It appears that the I.D.B.I. Bank Home Finance Ltd., being the mortgagee, sold the flat and appropriated a part of the sale proceedings towards its claim. I am informed that the balance amount is lying with the I.D.B.I. Bank Home Finance Ltd..
In view of the order dated 2nd March 2010, the defendant is restrained from withdrawing the amount, either by itself or through any other party, from the I.D.B.I. Bank Home Finance Ltd., till further orders.
37.ss.415.10
Any further reliefs must be sought in the execution proceedings.
2 issues framed by the court
Whether the suit for recovery of amount paid by plaintiff to defendant due to non-implementation of sale agreement is maintainable in the absence of defendant's appearance.
Whether to decern the suit as prayed by the plaintiff.
S.J. Vazifdar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
