- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.1001 OF 1995 NO.1001 OF 1995 NO.1001 OF 1995 1.Vipulkumar Rajnikant Thanawala 2.Jayantilal Tulsidas Thanawala ...Plaintiffs vs. 1.Ganeshlal Valamji Pasoli 2.Jaishanker Valamji Pasoli 3.Kuberlal Umashanker Sharma ...Defendants Plaintiff No.2 appears in person None for the defendants CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : NOVEMBER 10,2008 : NOVEMBER 10,2008 : NOVEMBER 10,2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. I have heard the 2nd plaintiff appearing in person. It will be necessary to refer to the facts of the case in brief: . According to the plaintiffs, the 1st and 2nd defendants executed a promissory note dated 17th December 1987 for a sum of Rs.60,000/- in favour of the 1st plaintiff and his mother. 1st and 2nd Defendants also executed another promissory note dated 18th July 1987 for a sum of Rs.55,000/- in favour of the 2nd plaintiff. According to the case of the plaintiffs, 1st and 2nd defendants made a part payment of an amount of Rs.30,000/- towards a promissory note dated 17th December 1987 to the 1st plaintiff and his mother. However, the balance amount was not paid. According to the case of the plaintiffs, the defendants failed to make any payment towards the - 2 - promissory note dated 18th July 1987 in the sum of Rs.55,000/-. 2. The plaintiffs have placed reliance on an affidavit dated 11th April 1990 executed by the 1st and 2nd defendants by which they have admitted their liability to make payment of a sum of Rs. Rs.85,000/- to the plaintiffs with interest thereon at the rate of 21% p.a. within a period of 34 months. Reliance is also placed on an affidavit dated 11th April 1990 executed by the 3rd defendant by which the 3rd defendant agreed to pay the said amount of Rs.85,000/- with interest thereon at the rate of 21% p.a. As the defendants failed to pay any amount, the present suit has been filed praying for a decree in the sum of Rs.1,38,050/- together with interest at the rate of 21% p.a. on an amount of Rs.85,000/-. 3. It must be stated here that the decree has been already passed as against the 1st and 2nd defendants on 23rd October 2002. Initially, the decree was also passed against the 3rd defendant. However, by order dated 29th November 2004 passed in the notice of motion no.3135 of 2002, the said decree has been set aside and the 3rd defendant was permitted to file written statement. Accordingly, the suit was restored as against the 3rd defendant. The 3rd defendant filed written statement and denied execution of relevant documents including the affidavit dated 11th April 1990. - 3 - 4. The issues were settled on 5th December 2005 between the plaintiff and the 3rd defendant. The issues read thus : (1) Whether the plaintiffs have proved that the defendant no.3 is liable in view of an affidavit dated 11th April 1990, to pay the plaintiff the required sum of money of Rs.1,38,050/-, along with interest @ 21% per annum on Rs.85,000/- from the date of suit till payment/realisation in case the Defendant No.1 and defendant No.2 ? (2) Whether the plaintiff proves that the Court has jurisdiction to entertain the present suit ? (3) Whether the defendant No.3 has proved that the suit is contrary to the provisions of law and is incompetent and not maintainable ? (4) Whether the plaintiffs prove that this Hon’ble Court has jurisdiction to try and entertain the present suit ? (5) Whether the defendant no.3 has proved that the document at Exh.A and Exh.B to the plaint are false and bogus document ? - 4 - (6) What is due to the plaintiff and from whom ? (7) What decree or order ? 5. The plaintiffs have filed an affidavit in lieu of examination in chief of the 2nd plaintiff. The plaintiffs have also filed on record the original documents. The examination in chief of the 2nd plaintiff was recorded on 22nd October 2008. None appeared for the 2nd defendant on that day. Hence, the cross examination of the 2nd plaintiff was closed. The 2nd plaintiff appearing in person closed his evidence and accordingly, the suit has been kept today for arguments. 6. I have heard the arguments of the 2nd plaintiff appearing in person. None appears for the defendants. 7. I have considered the submissions. I have also perused the record. In view of what is stated in paragraph 4 of the affidavit in lieu of examination in chief, the execution and the contents of the affidavit dated 11th April 1990 executed by the 3rd defendant have been proved. The plaintiffs have produced an affidavit dated 11th April 1990 executed by the 1st and 2nd defendants. The execution and contents of the said affidavit have been duly proved in view of what is stated in paragraph 3 of the affidavit of examination in chief of the - 5 - 2nd plaintiff. An office copy of the letter dated 12th February 1993 issued by the Advocate for the plaintiffs has been placed on record. The office copy of the said letter bears the acknowledgement signed by the 3rd defendant. Perusal of the affidavit of the 3rd defendant dated 11th April 1990 shows that the 3rd defendant is under an obligation to pay a sum of Rs.85,000/- with interest thereon at the rate of 21% p.a.to the plaintiff, if the 1st and 2nd defendants fail to pay the said amount of Rs.85,000/- with interest thereon. In the said affidavit, he stated that the 3rd defendant will not dispose of in any manner or deal with the Shop No.2, at Unique Industrial Estate, Chakala, Andheri (E), Mumbai 400 093 till the payment of the said amount of Rs.85,000/- with interest by the 1st and 2nd defendants is made. There is no challenge to the version of the 2nd plaintiff in the affidavit in lieu of examination in chief. The 2nd plaintiff appearing in person states that he has not received or recovered any amount from the 1st and 2nd defendants on the basis of the decree passed against them. 8. Perusal of the affidavit of the 3rd defendant shows that he had undertaken the liability to pay a sum of Rs.85,000/- with interest thereon due to the plaintiffs in the event the 1st and 2nd defendants fail to pay the said amount within a period of 34 months from the date of execution of the affidavit i.e. 11th April 1990. Thus, the liability of the - 6 - 3rd defendant to pay the amount has been established by the plaintiffs. The affidavit executed by the 3rd defendant records that the agreed rate of interest was 21% p.a. It must be stated that not only the 3rd defendant has failed to cross examine the 2nd plaintiff but the 3rd defendant has not stepped into the witness box. 9. In view of the aforesaid discussion, the issues framed will have to be answered in favour of the plaintiff and against the 3rd defendant. At this stage, the 2nd plaintiff appearing in person states that the 3rd defendant has already sold the said shop no.2 and therefore arrest warrant be issued against the said defendant. It is obvious that necessary steps will have to be taken by the plaintiffs for executing the decree which is being passed against the 3rd defendant. 10. Hence, I pass the following order : i) The 3rd defendant is ordered and decreed to pay to the plaintiffs a sum of Rs.1,38,050/- together with interest at the rate of 21% per annum on the sum of Rs.85,000/- from the date of institution of the suit till realisation of the amount. The plaintiffs shall be entitled to the costs of the suit from the 3rd defendant. - 7 - JUDGE JUDGE JUDGE