Allowed

Noble Resources and Trading India Pvt. Ltd. v. Shree Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. and 2 Ors.

Bombay HC19 Sept 2013SJ/95/2012

Case brief

AI extract

What is this about?

Photocopy of judgment on Summons for Judgment returned and made absolute without cross-filed affidavit, holding suit maintainable for balance debt.

What did the court decide?

Summons for judgment made absolute; suit decreed in terms of the plaintiff's prayer.

What the court decided

Noble Resources and Trading India Pvt. Ltd… — Contract and Commercial Disputes | Bombay HC (2013)

.. 1 ..

6-sj-95.2012.sxw

hvn

IN THE HIGH COURT OF JUDICATURE AT BOMBAY . ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

SUMMONS FOR JUDGMENT NO. 95 OF 2012 IN

¶6

SUMMARY SUIT NO. 2449 OF 2011

¶7

Noble Resources & Trading India Pvt. Ltd.

¶8

… Plaintiff

¶9

Versus

¶10

M/s. Shree Satpuda Tapi Parisar Sahakari Sakahr Karkhana Ltd and Ors. … Defendants

¶11

Mr.N. Pandit with Ms. T.M. Kapadia with Mr. U.C. Murlidharan i/by Jay Legal for plaintiffs.

¶12

None for defendants.

¶13

CORAM : R.D.DHANUKA J. DATED : SEPTEMBER 19, 2013. P.C.

¶14

By this summons for judgment, Plaintiff seeks that the judgment be entered in the name of plaintiff against the defendant in the sum of Rs. 4 Crores with further interest at the rate of 12% p.a., from the date of the order till payment and or realization. None appears for the defendants though served. No affidavit in reply has been filed by the defendants though time was granted to file affidavit by orders dated 5^th August, 2013 and 5^th September, 2013.

¶15

On 1^st February, 2008 parties entered into MOU for procurement of Molases and production and sale of rectified Spirit by converting it into

¶16

.. 2 .. 6-sj-95.2012.sxw

¶17

Spl. Den. Spirit on the terms and conditions recorded therein. Under the said MOU plaintiffs deposited sum of Rs. 4 Crores as security deposit and agreed to make further payments. It is the case of the plaintiffs that pursuant to the said MOU plaintiff had deposited the sum of Rs. 4 Crores as security deposit and had further advanced sum of Rs.3.5 Crores to the defendants. Defendants however, committed default of their obligations under the said MOU. On 12^th August, 2009 defendants entered into another agreement in supercession of the said MOU. Under the said agreement, defendants admitted and acknowledged their liability to pay sum of Rs.7.5 Crores to the Plaintiff. Defendants agreed to pay Rs.3.5 Crores to the plaintiff. Defendants agreed to pay Rs.3.5 Crores by 7 cheques of Rs. 50 lacs each. It was recorded that time was an essence of the said agreement and if any chque was dishonoured on presentation for payment, defendant shall pay interest at the rate of 12% p.a., on the amount for which the said cheque was drawn from the date of dishonour of the cheque till payment in full by the defendant. On dishonour of 7 cheques issued by the defendants pursuant to the said agreement of 12/8/2009, after issuance of notice under section 138 of Negotiable Instruments Act, plaintiffs filed proceedings under the provisions of the Negotiable Instrument Act against the defendants. In those proceedings, the parties filed consent terms on 9^th December, 2011. The defendants agreed to pay Rs.3.5 Crores to the plaintiff by cheques. It is not in dispute that except 1 payment, plaintiffs have received the amounts agreed to be paid under the said consent terms. In paragraph 7 of the said consent terms, it was recorded that the parties will produce copy of the consent terms on record in these proceedings. It was also agreed between the parties that the recovery in the summary suit would be for remaining amount after deducting the amount of Rs.350 lacs along with interest which would be

¶18

.. 3 ..

¶19

6-sj-95.2012.sxw

¶20

received by the complainant/plaintiffs herein.

¶21

Defendants thereafter filed notice of motion (1568 of 2012) in this court inter alia praying for referring the parties to arbitration relying upon clause 25 of the MOU dated 1^st February, 2008. By an order dated 26/11/2012, passed by the learned Single Judge of this court, said notice of motion came to be allowed and matter was directed to be referred to arbitration. Being aggrieved by the said order dated 26^th November, 2012, plaintiffs herein filed an appeal (L) No. 11 of 2013. By order dated `15^th January, 2013 the Division Bench of this court admitted the said appeal and granted ad interim stay of the order dated 26/11/2012 passed by the learned Single Judge of this court in Notice of Motion No.1568 of 2012. The said appeal is still pending. It is not in dispute that the order passed by the learned Single Judge has not been set aside. It is also not in dispute that the proceedings in the Summary Suit are not stayed.

¶22

This matter had appeared on board on 5^th August, 2013 when these orders passed by the learned Single Judge as well as by the Division Bench of this court were brought to my notice. Since there was no stay of this proceedings granted by the Division Bench, this court permitted the defendants to file affidavit in reply within three weeks from the date of the said order. Since no affidavit in reply was filed though directed by the said order dated 5th August, 2013, on the request of the defendants, indulgence was once again shown to the defendants to file affidavit by way of last indulgence till 13^th September, 2013. No affidavit in reply has been filed by the defendants. Defendants are absent when the matter is called out.

¶23

.. 4 .. 6-sj-95.2012.sxw

¶24

Mr. Pandit, the learned counsel for the plaintiff submits that this summary suit is filed based on the agreement dated 12^th August, 2009 and not based on MOU. It is submitted that in any event the order passed by the learned Single Judge of this court has been stayed by the Division Bench. The learned counsel invited my attention to the consent terms filed between the parties in Criminal proceedings. On perusal of the consent terms, it is clear that the parties had agreed to produce copy of the consent terms filed in these criminal proceedings in this suit. It has also been agreed that the recovery in the summary suit would be for remaining amount after deducting Rs.350 lacs along with interest which would be received by the complainant in the said consent terms. In my view, it is clear from bare reading of the consent terms filed by the parties beyond reasonable doubt that in respect of the balance amount after giving credit of Rs. 350 lacs both the parties had agreed to proceed with the summary suit in respect of the balance amount of Rs. 400 lacs. In any event, since the order passed by the learned Single Judge referring the parties to arbitration has been stayed by the Division Bench of this court and in view of the fact that the proceedings in this summary suit are not stayed by the Division Bench, I have proceeded with the hearing of the summons for judgment.

¶25

On perusal of the writing dated 12^th August, 2009, it is clear that the defendants have acknowledged their liability in the sum of Rs. 7.5 Crores out of which defendants had only paid Rs.3,32,50,000/- to the plaintiffs by entering into consent terms in the criminal proceedings. Balance admitted liability has not been paid by the defendant to the plaintiff. In view of the writing entered into between the parties in my view summary suit for recovery of balance amount is maintainable. Since there is no affidavit in

¶26

.. 5 .. 6-sj-95.2012.sxw

¶27

reply filed by the defendants, though enough indulgence was shown by this court, the averments made in the plaint as well as affidavit in support of the Summons for Judgment deserves to be accepted.

¶28

Summons for judgment is accordingly made absolute in terms of prayer clause (a).

¶29

Suit is decreed in terms of the order aforesaid.

¶30

Refund of court fees as per rules.

¶31

(R.D.DHANUKA, J.)

Noble Resources and Trading India Pvt. Ltd. v. Shree Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Noble Resources and Trading India Pvt. Ltd. v. Shree Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Raana Haripada Roy Vs Subhash Chander Rewari

Sudipto Ghosal Vs Jaya Ghosal

SBI Global Factors Ltd. Vs Lifeline Industries Ltd. and 2 Ors.

Smt. Karuna Jagdish Sawant and Kadambari Jagdish Sawant Vs .............

Ashutosh Y. Maneklal Vs Lina Y. Maneklal and 7 Ors.

Rational Art and Press Pvt. Ltd. Vs Our Lady of Salvation Church and 5 Ors.