1 SJ312.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION kj SUMMONS FOR JUDGMENT NO.312 OF 2009 IN SUMMARY SUIT NO.1715 OF 2009 Shri Subodh Vishwanath Dhuru ..Plaintiff Vs Shri Dilip Srinivas Hate ..Defendant ---- Mr.R.M.Pardiwalla i/by Mulla & Mulla for the plaintiff. Mr.P.K.Dhakephalkar along with Sachin Bodke i/by Chitnis Vaity & Co. for the defendant. ---- Coram : S.C.DHARMADHIKARI,J Date : 19TH OCTOBER, 2010. PC 1 The defendant has been proceeded under Order 37 of the Code of Civil Procedure on the basis of an agreement dated 18.8.1997 under which development rights pertaining to 1/16 undivided shares of the plaintiff in the property came to be handed over with power to sale and execute the deed of conveyance in 2 SJ312.09.sxw respect of the property on as is where is basis. The total consideration is of Rs.1, 56,25,000/-. It is stated that agreement contemplates payment of interest at the rate of 21% on the defaulted amount, from the due date till the date of actual payment. It is stated that the consideration was payable in terms of the schedule set out in paragraph-3 of the plaint. It is stated that only sum of Rs.2 lakhs has been paid leaving balance consideration of Rs.1,54,25,000/-. It is stated that balance payment was not made despite demand. 2 In reply, various contentions have been raised by the defendant but there is an admission to the extent of payment of Rs.1,54,25,000/-, that was not paid and that is how the summary suit was filed seeking that sum as principal with interest @ 21% p.a from the due date as set out in paragraph-3 of the plaint. 3 Having heard the learned Counsel for the plaintiff and learned Senior Counsel appearing on behalf of the defendant so also perusing with their assistance the relevant material, I am of 3 SJ312.09.sxw the opinion that the plaintiff has made out a case of the suit falling under order 37 of Code of Civil Procedure. There is an admission of the defendant to the extent of the liability of payment of principal sum. This acknowledgment of the liability is clear from the letter dated 6.12.2008 and particularly paragraph nos.8 & 9 thereof. In such circumstances, when there is a dispute whether interest is payable or not and further triable issue arises, interest of justice would be served by passing following order :- O R D E R 1 On the defendant depositing sum of Rs.1,54,25,000/- within two months from today, suit shall stand transferred to the list of commercial causes with usual direction to file written statement. In case of default, further consequences under law will follow. Summons for Judgment is made absolute accordingly. (S.C.DHARMADHIKARI,J)