Allowed

Nihar Construction Private Limited v. Narendra Mohan Singh

Bombay HC9 Apr 2014S/1368/2012

Case brief

AI extract

What is this about?

This suit for refund of Rs. 5.35 crores along with interest proceeded ex-parte due to non-appearance of the defendant. The court passed a decree declaring the defendant liable for the refund secured by specific immovable property, including directions for sale of said property in case of default.

What did the court decide?

Decree passed for payment of Rs. 5.35 crores with interest, secured by immovable property, with direction for sale of property in case of default and recovery of shortfall.

Nihar Construction Private Limited Vs Narendra Mohan… — Execution and Attachment | Bombay HC (2014)

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8-S1368-12.DOC

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Agk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1368 OF 2012

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WITH

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NOTICE OF MOTION NO. 1804 OF 2012

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Nihar Construction Private Limited…Plaintiffs
Versus
Narendra Mohan Singh…Defendants

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Ms. Jyoti Sinha, i/b Negandhi, Shah & Himayatullah, for the
Plaintiffs.

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None for the Defendants.

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CORAM:G.S. PATEL, J
DATED:9th April 2014

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PC:-

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1.In this suit, the plaintiffs claim an amount of Rs. 5.35 crores
and further interest from the defendant.

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2.The plaintiffs’ case is that under an Memorandum of
Understanding (“MoU”) dated 1st April 2000, the plaintiffs
agreed to purchase lands made available by the defendant from the
respective land owners with a clear title. On the execution of that
MoU, the plaintiffs paid an amount of Rs. 5 crores to the
defendants to be adjusted against the total sale price. Although the

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8-S1368-12.DOC

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plaintiffs were shown certain plots of land, they found that the title
documents to these lands were defective. The defendant was
unable to perfect these titles or to assure the plaintiffs of a
marketable title. In terms of the MoU, if the plots were not made
available to the plaintiffs’ satisfaction, the advance paid was
required to be returned with interest. The plaintiff was, therefore,
entitled to a refund of the amount paid by him.

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3.The plaintiffs called upon the defendant to refund the
amount by their letter dated 1st November 2011. The defendant
replied on 2nd December 2011, saying that he was arranging funds.

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4.As the defendant did not make a refund, the plaintiffs
demanded that tangible security be provided to secure the payment
of amount. In response to this, the defendant deposited the original
title deeds of an immovable property at CTS No. 4708 of Village
Kole Kalyan as security for repayment of the amount of Rs. 5 crores
and interest at the rate of 12% per annum. That deposit of title
deeds was made by the defendant with intent to create security on
the immovable property to secure the repayment of the amount of
Rs 5 crores and interest. The defendants also gave the plaintiffs a
post-dated cheque of Rs. 5 crores, dated 31st March 2012. On
presentation, that cheque was dishonoured for the reason “Account
Blocked/Seized”.

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5.According to the plaintiffs, no amount has been paid till date.
As of 30th April 2012, including interest at the rate of 12% per
annum from 1st October 2011 to 30th April 2012, an amount of
Rs.5.35 crores is due and payable to the plaintiffs.

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8-S1368-12.DOC

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6.The plaintiffs have filed an affidavit in lieu of examination in
chief and a compilation of documents. Although served, the
defendant has neither entered appearance nor filed a written
statement. The plaintiff is entitled to an ex-parte decree inter alia
under Order 8 Rule of the Code of Civil Procedure, 1908.

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7. There will, therefore, be a decree in favour of the plaintiffs and against the defendant in terms of prayer clauses (a), (b), (c), (d) and (e) of the plaint, which read as follows : “(a) that it be declared that defendant is liable to pay to the plaintiffs an amount of Rs.5,35,00,000/- (Rupees Five Crores Thirty Five Lakhs only) as on 30th April 2012 as per the particulars of claim annexed and marked Exhibit “I” hereto along with further interest thereon at the rate of 12% per annum from 1st May 2012 till payment and/or realisation;

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(b) that it be declared that the due repayment of the moneys set out in prayer (a) is secured by a valid and subsisting security of the said immoveable property more particularly described in Exhibit “J” hereto;

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(c) that defendant be ordered and directed to pay to the plaintiffs an amount of Rs..5,35,00,000/- (Rupees Five Crores Thirty Five Lakhs only) as on 30th April 2012 as per the particulars of claim annexed and marked Exhibit “I” hereto along with interest at the rate of 12% per annum from the date of the suit till payment and/or realisation;

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(d) that in the event of default being made by the defendant in payment of the amount mentioned in prayer (c) hereinabove, the said immoveable property as described in Exhibit “J” hereto be ordered and directed to be sold by an order and under the directions of this Hon’ble Court and the net sale proceeds be ordered to be paid to the plaintiffs towards their claim in the suit;

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(e) that in the event of there being any deficit / shortfall / deficiency qua the decretal amount after sale of the said immoveable property more particularly described in Exhibit “J” hereto, a decree be passed against the defendant and the defendant be ordered and directed to pay the deficit / deficiency / shortfall of decretal amount to the plaintiffs;”

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8.In the event that the defendant does not make payment of the
decreetal amount to the plaintiffs within a period of six months
from today, the immovable property over which security was
created shall be sold by the Court Receiver, High Court, Bombay
and the net sale proceeds shall be paid over to the plaintiffs towards
their claim in the suit. Should there be a shortfall or deficiency after
realisation of those sale proceeds, there will be a decree in the
amount of such deficiency against the defendant and in favour of
the plaintiffs, with interest at the same rate as specified above.

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9.Decree to be drawn up accordingly. Sealing of decree is
dispensed with.

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10.In view of disposal of suit, nothing survives in the notice of
motion and the same is disposed of as such.

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(G. S. PATEL, J.)

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Nihar Construction Private Limited v. Narendra Mohan Singh

Case brief

What is this about?

What did the court decide?

Nihar Construction Private Limited v. Narendra Mohan Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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