Shabbir Abbasbhai Leila And 3 ORS v. Neptune Ventures And Developers Pvt Ltd And 3 ORS
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMM SUMMARY SUIT NO. 49 OF 2021 SANTOSH SUBHASH KULKARNI Shabbir Abbasbhai Leila & ors.
...Plaintiffs
Versus
Neptune Ventures & Developers Pvt. Ltd. & ors.
...Defendants SANTOSH SUBHASH KULKARNI Date: 2022.09.21 19:10:08 +0530 Mr. Yahya Ghoghari, a/w Mustafa Sahbbir Shamim, for the Plaintiffs.
None for the Defendants.
CORAM:
N. J. JAMADAR, J.
RESERVED ON :
26th July, 2022 PRONOUNCED ON:
21st September, 2022 ORDER:- 1.
This commercial division summary suit is instituted for recovery of a sum of Rs.1,10,04,164.38 along with interest at the rate of 24% p.a. on the principal amount of Rs.54,00,000/-. 2.
Defendant no.1 is a Private Limited Company. Defendant nos.2 and 3 are the Directors of defendant no.1. Defendant no.4 is the Company Secretary. Defendant nos.2 to 4 are in-charge of and responsible to the affairs of defendant no.1 Company. 3.
In the month of September/October, 2014, defendant no.3 approached the plaintiffs through Mr. Nayan Bheda, defendant no.3, and induced the plaintiffs to purchase Flat No.1808 1/8
admeasuring about 702 sq. ft. on the 18th floor of the building Neptune Eleve to be constructed on a plot of land situated at LBS Marg, Bhandup (W), for a consideration of Rs.1,19,65,625/-. The plaintiffs were assured that in the event the said project could not be completed within the specified time, the defendants would pay interest at the rate of 24% p.a. on the investment till the refund of the said amount. Based on the representations of the defendants the plaintiffs made payment of a sum of Rs.45,00,000/- towards part consideration, vide five cheques and two RTGS transactions. An allotment letter was issued on 5th May, 2016 in favour of the plaintiff. 4.
The plaintiffs repeatedly inquired with the defendants about the progress of the said project. Initially, the defendants informed the plaintiffs that they were negotiating a deal with TATA Housing Development Company for development of the said project. In the month of February/March 2018 the defendants addressed a letter to the plaintiffs informing them that they would be shifting investors/purchasers of flats in Neptune Eleve Wing 'B' to Wing 'C' or 'D' as the latter buildings would be completed sooner. Realizing that the defendants were deceiving them, the plaintiffs addressed a legal notice on 28th May, 2018 calling upon the defendants to refund the entire 2/8
amount of Rs.54,00,000/- along with interest at the rate of 24% p.a. The defendants kept on assuring the plaintiffs that the investment was safe. They were given to understand that the investment had earned profit of Rs.28,12,438/- calculated at the rate of 24% p.a. as of 30th September, 2018. Again the defendants represented to the plaintiffs that they were entering into a joint venture agreement with Shapoorji Pallonji. Even the said arrangement did not materialize. Pursuant to repeated demands, the defendants eventually issued a revised allotment letter on 26th April, 2019, wherein the defendants offered Flat No.1908 on the 19th Floor in the 'C' Wing to the plaintiffs. The plaintiffs assert that the defendants have failed to refund the principal amount along with interest accrued thereon, on one or the other pretext. Hence, this suit based on the acknowledged liability.
5.
The writ of summons was duly served on the defendant nos.1 and 2 and affidavit of service is filed on behalf of the plaintiff.
6.
In view of the provisions contained in Order XXXVII Rule 2(3) of the Code of Civil Procedure, 1908, in the event of default on the part of the defendants to enter appearance the averments 3/8
in the plaint are required to be deemed to be admitted and the plaintiffs become entitled to a decree.
7.
The plaintiffs have tendered an affidavit in support of the claim, affidavit of documents and a compilation of the documents. I have heard Mr. Ghoghari, the learned Counsel for the plaintiff.
8.
The learned Counsel for the plaintiffs submitted that the claim of the plaintiffs that they had paid a sum of Rs.54,00,000/- towards part consideration for purchase of Flat No.1808 in Neptune Eleve is substantiated by the receipts (Exhibit A1 to A7) executed on behalf of defendant no.1. The allotment letter dated 5th May, 2016 (Exhibit B) further fortifies the said claim as it contains the material terms of the contract between the parties. Defendant no.1 allotted Flat No.1808 admeasuring 702 sq. ft., 18th Floor, East Wing 1 in Neptune Eleve for a consideration of Rs.1,19,65,625/-. The allotment letter records that the plaintiffs had deposited with the defendants a sum of Rs.45,00,000/- till that date. 9.
Taking the Court through the record, which evidences the subsequent developments in the nature of the proposed shifting of the investors/purchasers from Wing 'B' to Wing 'C' or Wing 'D', negotiations with developers like Shapoorji Pallonji and the 4/8
revised allotment letter dated 26th April, 2019, wherein instead of Flat No.1808 the defendants professed to allot Flat No.1908 on 19th Floor in 'C' Wing for the consideration of Rs.1,19,65,625/-, which also acknowledged the fact that the plaintiffs had already paid a sum of Rs.82,12,438/- by way of earnest, Mr. Ghoghari would urge that quantification of the said amount of Rs.82,12,438/- lends credence to the case of the plaintiffs that the defendants had agreed to pay interest on the principal amount of Rs.54,00,000/-. This, according to Mr. Ghoghari, constitutes a clear acknowledgment of liability. 10.
I have perused the original documents tendered by the plaintiffs in support of their claim. A conjoint reading of the receipts (Exhibits P1/2 to P1/8) with the initial allotment letter dated 5th May, 2016 (Exhibit P1/9) makes it abundantly clear that the plaintiffs had deposited with the defendants a sum of Rs.45,00,000/-. The allotment letter further records that Flat No.1808 in East Wing 1 Neptune Eleve was allotted to the plaintiffs for the consideration of Rs.1,19,65,625/-. This was followed by a further payment of Rs.9,00,000/- by Arwa Golawala, plaintiff no.3, on 12th August, 2016, evidenced by the receipt (Exhibit P1/10). Thus, the claim of the plaintiffs that they had paid a sum of Rs.54,00,000/- towards part 5/8
consideration of Flat No.1808 in a building to be developed by the defendants is established beyond the pale of controversy. 11.
On the aspect of the alleged agreement to pay interest at the rate of 24% p.a. on the said amount in the event of failure to handover the flat within the specified period, there is no document which could constitute a written contract to pay interest. The developments, in the intervening period, in the nature of the proposal to shift the purchasers to different buildings and issue of legal notice by the plaintiffs to the defendants calling upon them to refund the amount along with interest do not bear upon this issue.
12.
Revised allotment letter dated 26th April, 2019 (Exhibit P1/27), however, provides requisite support to the claim of the plaintiffs. Clause (i) of paragraph 'D' of the letter dated 26th April, 2019 reads as under:
"D) Brief of revised allotment letter are as follows: i.
You have already paid the Earnest money of Rs.82,12,438/- (Rupees Eighty-two lakh Twelve thousand Four hundred and thirty-eight only) towards the earlier allotted Flat No.1808, on 18 Floor in East Wing 1/A Wing having Carpet Area of 702 Sq. Feet of "100 above Building" vide allotment letter dated 05.05.2016 and paid Earnest Money, which shall be adjusted against the total consideration payable towards the allotment/sale of said premises by us. The balance consideration amount is to be paid by you as per payment Schedule annexed herewith as Annexure "A", wherein no payment will be made by you till the completion of plinth."
(emphasis supplied) 6/8
13.
The aforesaid stand of the defendants that the plaintiffs had till date paid an earnest money of Rs.82,12,438/- towards Flat No.1808, which was initially allotted to the plaintiffs, in the context of the positive assertion of the plaintiffs that they had paid only a sum of Rs.54,00,000/- to the defendants contains an implicit admission that the amount over and above the principal amount of Rs.54,00,000/- was in the nature of return/interest on the said amount. This constitutes an admission of liability to the extent of Rs.82,12,438/-. 14.
Since the plaintiffs claim and documents tendered in support thereof have gone unimpeached and the said amount of Rs.82,12,438/- represents the principal amount plus the return thereon, which the defendants acknowledged as the liquidated amount, I am persuaded to pass the decree.
15.
Hence, the following order:
: O R D E R :
(i) The suit stands partly decreed against defendant nos.1 to 3.
(ii) Defendant nos.1 to 3 do pay the sum of Rs.82,12,438/- along with further interest at the rate of 9% p.a. on the principal amount of Rs.54,00,000/- from 7/8
the date of the institution of the suit till payment and/or realization.
(iii) Defendant nos.1 to 3 do pay the costs of the suit to the plaintiffs.
(iv) The suit stands dismissed against defendant no.4. (v) The plaintiffs are entitled to refund of Court-fees, if any, in accordance with Rules.
(vi) Decree be drawn and sealed expeditiously.
[N. J. JAMADAR, J.] 8/8