Miloni Shah Nee Ramesh Vora v. Orbit Developers & Ors.

1. The present suit is filed as a summary suit under Order XXXVII Rule 2 of the Code of Civil Procedure for recovery of an amount of Rs. 2,00,64,940/- along with interest thereon at the rate of 18% per annum from the date of filing of the suit till payment and/or realization thereof.

2. The plaintiff executed a letter of allotment dated 2nd april 2017 with Orbit Ventures & Co. defendant no 1 (a partnership firm) in respect of flat no.1202 Chakravarti Ashok Cooperative Housing Society Limited Andheri as particularly set out in Exhibit A of the Plaint. A Letter of allotment was issued by defendant to the plaintiff on 2nd April 2017 against payment of part consideration being Rs.1,59,88,500/ out of which 1,53,00,00 is towards the flat flat no.1202 and Rs.6,88,600 was towards service charges. The Agreement for Sale was executed in January 2018 which recorded that the total consideration amount was 2,68,59,650/-.

3. In view of the project being delayed, at the request of the Plaintiff, the allotment of flat No. 1202 was cancelled and a commercial unit of 600 sq ft was alloted to the plaintiff in project known as “Water Front” a project of the sister concern of the Defendant. The plaintiff and the defendant executed a Memorandum of understanding in November 2020 for allotment of a commercial unit ad-measuring 600 square feet in the project for a consideration of Rs. 1,32,00,000/-. It was agreed in the MOU that the balance will be adjusted against the taxes, other charges at the time of possession. The plaintiff has learned that the defendants have taken a loan from India. Infoline Finance Limited (IIFL) in respect of the Project and has executed an Indenture of Mortgage dated 31st March

2015.

4. The plaintiff learnt that the loan taken by the defendants was now classified as an NPA as per RBI guidelines and the outstanding as per the notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is to the tune of Rs. 147,45,89,688/-.

5. In these circumstances, the plaintiff by his advocate’s letter dated 30th September 2021, placed the above facts on the record, terminated the MOU and called upon the defendants to refund the sum of Rs. 1,59,88,500/- along with interest at the rate of 18% per annum from November 2020 till payment and/or realization thereof.

6. The plaintiffs have learnt that the defendant has not proceeded with the project since then and although defendant got approved the commencement certificate in April 2019 to construct upto 5th floor, defendant have constructed only up to the plinth since 31st March 2018.) Besides this, there is an outstanding of Rs. 147,45,89,688/- due and payable to IIFL. In these circumstances the plaintiff has filed a suit as a summary suit for recovery of outstanding dues. As per the particulars of claim, more particularly, stated at Exhibit J of the plaint, an amount of Rs.2,00,64,940 is due and payable by the defendants jointly and severally to the plaintiffs along with interest at the rate of 18% per annum from the date of filing of the suit till payment and/or realization.

7. The writ of summons was served by the plaintiff upon the defendants on 30th July 2022 and an affidavit of service to that effect has been filed by the bailiff from the office of the sheriff of Bombay on 26th September 2022. In spite of service upon the defendants, they failed to enter an appearance in the matter.

8. Mr. Gada, the learned counsel for the plaintiff submitted that in view of Order XXXVII Rule 2(3), the plaintiff is entitled to a judgment forthwith. By an order dated 10th July 2023 this court recorded that the plaintiff has filed the affidavit of evidence in lieu of examination-in-chief dated 10th July 2023 of Mr. Ramesh Nanalal Vora, who has administered oath in the court and also tendered the original documents on behalf of the plaintiff along with an affidavit dated 3rd January 2023.

9. In view of the provisions of Order XXXVII Rule 2(3), in my view the plaintiff is entitled to a decree forthwith.

10. I accordingly grant a decree against the defendants in the sum of Rs. 2,00,64,940/- along with interest thereon at rate of 18% per annum from the date of filing of the suit till payment and/or realization thereof.

11. The plaintiff is entitled to refund of court fees. The plaintiffs are also entitled to costs of Rs. 2 lakh in addition to the deficit of the refund of court fees that was paid by the plaintiff during filing of the suit.

12. The plaintiff is entitled to proceed with execution of the decree without waiting for the decree to be sealed.

13. The decree may be drawn up expeditiously.

14. The Summary Suit is disposed of in view of the aforesaid terms.