G N Construction Builders And Developers And ORS v. Christopher Fernandes

Arun Sankpal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1085 OF 2025 GN Construction Builders And Developers & Ors ..Petitioners

Versus

Christopher Fernandes

...Respondent

Mr. Suraj Naik, for the Petitioners.

Mr. Ali Abbas Delhiwala, with Tripty M. Kapadia and Anusya Raghavan, i/b Joy Legal Consultants, for the Respondent.

CORAM:

N. J. JAMADAR, J.

DATED :

21st FEBRUARY 2025 P.C.:

1.

Heard learned Counsel for the parties.

2.

The challenge in this Petition is to an order dated 13th November 2024 passed by the learned Judge, City Civil Court, Borivali Division, Dindoshi, whereby leave to defend a summary suit has been granted subject to deposit of a sum of Rs. 6,50,000/- by the PetitionersDefendants. ARUN RAMCHANDRA SANKPAL 3.

The Respondent-Plaintiff has booked a flat and towards by ARUN RAMCHANDRA SANKPAL Date: 2025.02.26 08:52:41 +0530 consideration a sum of Rs.19 lakhs was paid. The Respondent-Plaintiff could not pay the balance consideration. The allotment was, therefore, cancelled. The Petitioner repaid a sum of Rs. 12,50,000/-. Asserting that the balance amount was not refunded, Respondent instituted a 1/3

Summary Suit for the refund of the balance amount alongwith interest thereon.

4.

By the impugned order the learned Judge, City Civil Court was persuaded to grant conditional leave to defend observing, inter alia, that the receipt of the sum of Rs. 19,00,000/- was an admitted fact, and whether the Petitioner was entitled to deduct a sum of Rs. 2,00,000/- on account of cancellation of allotment was a matter for adjudication at the trial.

5.

The learned Counsel for the Petitioner invited attention of the Court to the allotment letter dated 1st October 2014, especially Clause

(5) thereof, which provides for the forfeiture of an amount of Rs. 2,00,000/- in the event of cancellation of the allotment as and by way of liquidated damages. The learned Counsel submitted that, out of the amount of Rs. 19 lakhs, a sum of Rs. 58,710/- was to be deducted towards the service tax. Therefore, the Petitioner was required to return a sum of Rs. 3,91,290/- lakhs only, and the Petitioner was willing to refund the said amount, provided the Respondent executed a document to evidence the cancellation of the allotment. 6.

In these circumstances, according to the learned Counsel for the Petitioners, since triable issues have been raised, conditional leave to defend could not have been granted.

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7.

The fact that the Respondent had deposited an amount of Rs. 19,00,000/- is not in dispute. Nor the fact that the a sum of Rs. 12,50,000/- was repaid by the Petitioner to the Respondent. The controversy between the parties revolves around the entitlement of the Petitioner to forfeit a sum of Rs. 2,00,000/- on account of the cancellation of the transaction and deduct an amount of Rs.58,710/- towards the service charges and the entitlement of the Respondent to claim interest on the balance amount.

8.

The learned Judge, City Civil Court, having regard to the admitted position of the payment of Rs. 19,00,000/- and refund of Rs. 12,50,000/-, was justified in granting leave to defend the suit subject to the deposit of balance principal amount of Rs. 6,50,000/-. The learned Judge, City Civil Court cannot be said to have exercised the discretion in such manner as to warrant interference in exercise of writ jurisdiction.

9.

Petition dismissed.

[N. J. JAMADAR, J.] 3/3