Allowed

Jayesh B. Patel v. Bhupendra J. Surani

Bombay HC1 Oct 2014SS/1354/2010

Case brief

AI extract

What is this about?

This is an ex-parte decree in a summary suit for a liquidated sum due under dishonoured bills of exchange. The defendant failed to appear or provide instructions to counsel after summons service. The court held that tendering original bills and acknowledgment letters entitled the plaintiff to a decree under Order XXXVII of CPC.

What did the court decide?

Decree against defendant to pay Rs. 32,22,28,238/- plus interest at 12% per annum along with costs of the suit.

Jayesh B. Patel Vs Bhupendra J. Surani — Contract and Commercial Disputes | Bombay HC (2014)

Nitin

916-SS-1354-2010

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 1354 OF 2010

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Jayesh Babubhai Patel … Plaintiff Versus

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Bhupendra Surani … Defendant

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Mr. K.M.S. Sanghavi i/b. Mr. A.K. Saxena for the Plaintiff. Mr. Hrishikesh A. i/b. Rizwan Merchant and Associates for the Defendant.

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CORAM : S.J. KATHAWALLA, J. DATE : 1ST OCTOBER, 2014

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JUDGMENT :

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The above Summary Suit is filed by the Plaintiff under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for an order and decree against the Defendant to pay to the Plaintiff a sum of Rs. 32,22,28,238/- being the amount due and payable as per the particulars of claim at Exhibit-R annexed to the Plaint with further interest on Rs. 32,22,28,238/- at the rate of 12% per annum from the date of filing of the Suit till payment or realization.

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After filing of the Suit, the Defendant was served with the Writ of Summons on 11^th November, 2010. Under Clause 1 of Rule 3 of Order XXXVII of CPC, the Defendant was required to enter an appearance on or before 21^st November, 2010. The Defendant failed to enter appearance for a period of almost four years. Thereafter, in September-2014 when

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the Suit once again appeared on board for 'Ex-parte Decree', the Defendant took out Chamber Summons (L) No. 1455 of 2014 seeking condonation of delay of 830 days in filing his appearance. However, again thereafter the Defendant stopped giving instructions to his Advocate. When this Court was informed about the same, the Court directed the Defendant to remain present before the Court. Though the learned Advocate appearing for the Defendant informed the Defendant to remain present in Court, the Defendant failed to do so. In view thereof, by an order of this Court dated 30^th September, 2014 the Chamber Summons was dismissed. The said order is reproduced hereunder :

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“1. The learned Advocate for the Applicant/Defendant states that the Defendant is not coming forward to give him instructions in the matter. Though he had informed him over the phone and that he is directed to remain present before this Court at 11.00 a.m. today, he has failed to do so. In view thereof, he submits to the orders of the Court. In the circumstances, the Court is constrained to dismiss the above Chamber Summons.

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2. Place the Summary Suit for 'Ex-Parte Decree' on 01-10-2014”.

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Today, the above Summary Suit has appeared on board for 'Exparte Decree'. The Defendant has not given instructions to his Advocate even at this stage. This Court has therefore proceeded with the Suit ex-

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parte. The Suit is based on the liquidated amount payable by the Defendant under Bills of Exchange at Exhibit-H and I annexed to the Plaint. The said bills have been dishonoured by the Defendant when presented for payment on 31^st December, 2005.

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The learned Advocate appearing for the Plaintiffs has tendered the original documents including all the bills of exchange as well as original letter of confirmation dated 31^st March, 2009 written by the Defendant to the Plaintiff acknowledging his liability and notices sent to the Defendant by the Advocate for the Plaintiff and received by the Defendant dated 11^th May, 2009 and 30^th August, 2009. The documents are taken on record. In view of Sub Clause (3) of Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908, the Plaintiff is forthwith entitled to a decree against the Defendant. Hence the following order :

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(i) The above Summary Suit is decreed in terms of prayer clause (a), which is reproduced hereunder :

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“(a) That the Defendant be ordered and decreed by

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this Hon'ble Court to pay to the Plaintiff, a sum of Rs.32,22,28,238/- being the amount due and payable as per the particulars of claim at Exhibit-R hereto with

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further interest on Rs.32,22,28,238/- @ 12% per annum from the date of filing of the Suit till payment or

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realization and for costs of the Suit”.

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(ii) The Defendant shall pay to the Plaintiff the costs of this Suit.

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(iii) The Plaintiff is entitled to refund of Court fees, if any, as per Rules.

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(iv) A copy of this Judgment shall be served on the Defendant by Registered Post A.D. at the address shown in the Plaint, by the Advocate for the Plaintiff.

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(v) The office to draw the Decree expeditiously.

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(vi) The Suit is accordingly disposed of. Refund of Court Fees, if any as per Rules.

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( S.J.KATHAWALLA, J.)

Jayesh B. Patel v. Bhupendra J. Surani

Case brief

What is this about?

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Jayesh B. Patel v. Bhupendra J. Surani

Case brief

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