1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.1628 OF 1997 Apex Financial Services and another ..Plaintiffs. Vs. Prem Nath Hoon and others ..Defendants. .... Ms. Preeti Menon i/b M/s. Sreeji & Lal for the Plaintiffs. None for the Defendants. .... CORAM : DR. D.Y. CHANDRACHUD, J. 29th June, 2009. P.C. : 1. The suit has been instituted for the recovery of an amount of Rs. 7,51,645/- together with interest. The case of the Plaintiffs is that the First Defendant is the brother of a person by the name of Pritam Nath Hoon who died on 20th April, 1996 while the Second and Third Defendants are sons of the deceased. The Fourth Defendant is stated to be in possession of the estate of the deceased situated at Gorai. According to the Plaintiffs monies were advanced to Pritam Nath Hoon (the deceased) from time to time, the details whereof have been furnished both in the Plaint and the affidavit in lieu of the examination in 2 chief filed in these proceedings. The monies lent and advanced remained to be paid by the deceased. The deceased is alleged to have executed a power of attorney dated 30th June, 1995 in favour of the First Plaintiff in respect of certain immovable property bearing City Survey No.1046 at Gorai. A demand promissory note in the amount of Rs.3 lacs was stated to have been executed. Post dated cheques were issued by the deceased towards the repayment of his liabilities and it has been stated that five of those cheques came to be dishonoured on presentation. The amounts due remained outstanding at the time of the death of the deceased. On 15th February, 1997 a letter was addressed to the First Defendant. By his reply dated 24th February, 1997 the First Defendant’s advocate denied interest in any of the properties of his brother. The reply also stated that the deceased had children but denied any knowledge about their whereabouts. The claim of the Plaintiffs is sought to be enforced against the Defendants who are respectively the brother and two sons of the deceased on the ground that the First Defendant has succeeded to the properties left by the deceased as mentioned in Exhibit E to the Plaint. In paragraph 14 of the Plaint, it has been averred that the brother of the 3 deceased has derived control and possession over the properties of the deceased. 2. The Defendants have not entered appearance despite service of the writ of summons. As a consequence the averments contained in the Plaint have not been controverted and the evidence which has been adduced on behalf of the Plaintiffs has gone unchallenged. The Plaintiffs have relied upon the affidavit in lieu of the examination in chief of the Second Plaintiff dated 29th June, 2009 and on a compilation of the original documents which is tendered and taken on the record. In the absence of any contest the averments in regard to the amounts lent and advanced to the deceased and of the failure of the deceased to repay the same have remained to be challenged. The question still remains as to whether the liability of the deceased can be enforced as against the Defendants. Insofar as the First Defendant is concerned it has been averred, as noted earlier, in paragraph 14 of the plaint that he has derived control and possession over the properties of the deceased. The same statement is contained in paragraph 20 of the examination in chief. 4 Insofar as the Second and Third Defendants are concerned, they are stated to be the sons of the deceased. The claim of the suit, in the absence of any contest would have to be decreed to the extent of the estate or property of the deceased that has come into the hands of the deceased: The suit shall accordingly stand decreed in terms of prayer clause (a) with the modification that the Plaintiffs will be entitled to interest at the rate of 6% per annum on the principal sum from the date of the suit until payment or realization, to the extent of the property of the deceased which is in the possession and control of the Defendants. *****