1 20.s.1985-97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 1985 OF 1997. 1. Aditya P. Thackersey (HUF), through its Karta Shri Aditya P. Thackersey. 2. Shri Aditya P. Thakersey of Bombay, Office at Sir Vithaldas Chambers, 16, Bombay Samachar Marg, Fort, Mumbai-400 023. ..Plaintiffs. Versus 1. Mukesh Mansukh Kothari of Bombay, as a Sole Proprietor in the firm name and style of Mukesh Mansukhlal, office at A Ground Floor, 24/B, Raja Bahadur Compound, Ambalal Doshi Marg, Behind Lalit Restaurant, Mumbai-400 023. 2. Vipul P. Kothari of Bombay, Residing at 7, Navjivan Society, 20, Nepeansea Road, Mumbai-40036. 3. Solid Carbide Tools Limited, a Company incorporated under the provisions of Companies Act, 1956 having their Registered Office at Plot No.R-402, TTC Industrial Area, MIDC, Thane Belapur Road, Rabale, New Bombay-400 701. ..Defendants. .... Mr. Vishal Kanade, a/w. Mrs. Prachi R. Mhatre, i/b. M.S. Bodhanwala & Co., for Plaintiffs. None for Defendants. .... CORAM : S.J. KATHAWALLA, J. DATE : 3RD MAY 2011. JUDGMENT : 1. By this Suit, the Plaintiffs pray for an order and decree 2 20.s.1985-97 against the Defendants to pay the sum of Rs. 41,30,000/- with further interest on Rs.35,00,000/- @ 18% per annum from the date of the filing of the Suit till payment or realization. Though the Writ of Summons is served on the defendants and the Affidavits of Service dated 6th September, 2004 and 28th March, 2005 are filed in this Court, the defendants have not filed their written statements and none appear for the defendants. The Suit therefore by an Order dated 22nd September, 2004 is transferred to the list of undefended suits against defendant nos. 2 and 3 and by an order dated 28th April, 2005 against defendant no.1 and now appears on board under the caption ‘Ex-parte Decree’. 2. Shri Aditya P. Thackersey (Deponent) in his capacity as Karta of his HUF being Plaintiff No.1 and in his personal capacity as Plaintiff No.2 has filed his Affidavit in lieu of Evidence dated 21st March 2011. The said Affidavit is taken on record and marked ‘X’ for identification. 3. It is stated in the Plaint as well as in the Evidence as follows:- 4. At the request of the Defendant Nos.1 and 2, the Plaintiffs lent sums of Rs.10,00,000/- and Rs.25,00,000/- to them on the terms and conditions recorded by two writings both dated 15th July 1994. Defendant Nos. 1 and 2 pledged 30,000/- and 70,000/- equity shares of Defendant No.3 Company as security for repayment of the aforesaid advances and pursuant thereto the Defendant Nos. 1 and 2 delivered the said shares to the Plaintiffs as set out in Writings dated 15th July 1994 being Exhibit ‘A’ and ‘A-1’ to the Plaint. The Original Writings are produced before this Court by the Deponent 3 20.s.1985-97 and he has deposed that the Writings were executed between Plaintiffs and Defendant Nos.1 to 2. He is familiar with the signatures of Defendant Nos.1 to 2 and identifies the same. The Writings are taken on record and marked Exhibit ‘P-1’ and ‘P-2’. 5. The Defendant No.1 on behalf of Defendant Nos.1 and 2 at the expiry of the aforesaid Writings vide letter dated 11th October 1994 requested the Plaintiffs to extend the validity of Contract for further period of three months. The Letter dated 11th October 1994 bears the signature of Defendant No.1. The Deponent has deposed that he is familiar with the signature of Defendant No.1 and identifies the same. The Letter dated 11th October 1994 is taken on record and marked as Exhibit ‘P-3’. 6. The Plaintiffs agreed to grant extension to the Defendants vide letter dated 15th October 1994. According to the Deponent, he has deposed that he has signed the said letter dated 15th October 1994. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same is taken on record and marked as Exhibit ‘P-4’. 7. The defendant No.1 requested for extension for repayment of the aforesaid advances vide several letters dated 6th January 1995, 12th April 1995, 10th July 1995, 6th October 1995. According to the Deponent, he is familiar with the signature of the Defendant No.1 and identifies the same. The said Letters are taken on record and marked as Exhibit ‘P-5’ Colly. 8. The Plaintiffs granted extension vide their letters dated 4 20.s.1985-97 13th January 1995, 12th April 1995, 14th July 1995 and 13th October 1995. According to the Deponent, he has signed the said letter dated 15th October 1994. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same are taken on record and marked as Exhibit ‘P-6’ Colly. 9. By another letter dated 11th April 1996 defendant no.1 requested for the extension of the said loan. According to the Deponent, he is familiar with the signature of Defendant No.1 and identifies the same. The Letter dated 11th April 1996 is taken on record and marked as Exhibit ‘P-7’. 10. The Plaintiffs granted last extension for repayment vide its letter dated 16th April 1996. However, there was no sign of repayment of the said loan from Defendant Nos.1 and 2 and therefore Plaintiffs vide its letter dated 1st July 1996 informed Defendant Nos. 1 and 2 that they did not wish to extend the validity period for repayment of the said loan and called upon Defendant Nos.1 and 2 to repay the said advances. According to the Deponent, he has signed the said letters dated 16th April 1996 and 1st July 1996. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same are taken on record and marked as Exhibit ‘P-8’ Colly. 11. However defendant nos. 1 and 2 once again vide letter dated 11th July 1996 requested to extend the validity period for repayment of the said loan for further period of six months. According to the Deponent, he is familiar with the signature of 5 20.s.1985-97 Defendant No.1 and identifies the same. The Letter dated 11th July 1996 is taken on record and marked as Exhibit ‘P-9’. 12. The Plaintiffs therefore through their Advocates notice dated 17th February 1997 called upon the Defendants to make the said payment of Rs.35,00,000/- together with interest thereon. The copy of said notice is taken on record and marked as Exhibit ‘P-10’. The said notice is replied to by the Defendants through its Advocate’s letter dated 21st February 1997 denying the Plaintiffs’ claim. The said notice is taken on record and marked as Exhibit ‘P-11’. The Plaintiffs through their Advocate’s letter dated 13th March 1997 replied to the said Defendants Advocate’s letter dated 21st February 1997 calling upon the Defendants to repay Rs.35,00,000/-. The copy of said letter is taken on record and marked as Exhibit ‘P-12’. Since the Defendants failed to pay the said amount, the Plaintiffs filed the above Suit for recovery of Rs.41,30,000/- as per particulars of claim annexed as Exhibit ‘I’ to the Plaint with further interest at the rate of 18% per annum on Rs.35,00,000/- from the date of filing of the Suit till realization and for costs. 13. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of Documents filed by the Plaintiffs. 14. As set out hereinabove, though the Defendants are served with the Writ of Summons, and Affidavits of service to this effect dated 6th September 2004 and 28th March 2005 are filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason 6 20.s.1985-97 why what the Plaintiffs have stated in the Plaint as well in the Affidavit of Evidence should not be accepted. 15. In the above circumstances in my view, the relief sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are jointly and severally ordered and decreed to pay to the Plaintiffs a sum Rs.41,30,000/- together with interest thereon at the rate of 18% per annum from the date of filing of the Suit till payment and/or realization. (ii) The defendants shall pay costs of this Suit to the Plaintiffs. (iii) Plaintiffs are entitled to refund of Court fees, if any, as per Rules. 16. The suit is accordingly disposed of in favour of the Plaintiffs and against the defendants. [ S.J. KATHAWALLA, J. ]