1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 2338 OF 2008 Oshiwara Land Development Company Pvt. Limited ....Plaintiff Versus Yunus M. Maniyar & 2 Ors. ....Defendants Mr. Vishal Kanade with Mr. Tanmaya Nirmal, i/b. Mahimtura & Co., Advocates for the Plaintiff. None for the Defendants. CORAM : R. V. MORE, J. DATE : 25th NOVEMBER, 2009. P.C. : Heard Mr. Kanade, learned Counsel for the Plaintiff. 2. The Plaintiff has filed an affidavit pointing out that the Defendant Nos. 1 & 2 are served on 8th October, 2008 and the Defendant No.3 on 13th October, 2008. I have also perused the report of the Deputy Sheriff. The report shows that the bailiff of the Sheriff's Office alongwith the Plaintiff's representative had gone to serve the writ of summon upon the Defendant Nos. 1 & 2 on 8th October, 2008. However, the said Defendants refused to accept the service and therefore, the copies of the writ of summons alongwith the plaint were 2 affixed on the outer door of their place of residence. The report, further shows that the Defendant No.3 was served on 13th October, 2008 through their representative - Ms. Rita D'souza. In view of the said report, the Defendants are deemed to have been served properly. Inspite of this, none appears on behalf of the Defendants and therefore, I have heard Mr. Kanade, learned Counsel for the Plaintiff on merits of the matter. 3. The Plaintiff has filed the summary suit under the provisions of the Order XXXVII of the Code of Civil Procedure, 1908 to recover an amount of Rs.11,56,115/- from Defendant Nos.1 & 2 with interest at the rate of 18% per annum from the date of filing the suit. It is the case of the Plaintiff that the Defendant No.1 approached the Plaintiff's Director with a request to stand as a guarantor/surety for personal loan of Rs.50,00,000/-, which Defendant Nos. 1 & 2 proposed to secure from the Defendant No.3. At the relevant time, the Plaintiff had Fixed Deposit of Rs.56,00,000/- in UTI Bank, which was subsequently amalgamated in Defendant No.3 ie. Axis Bank. 4. The Plaintiff acceded to the request of the Defendant Nos. 1 & 2 and stood guarantor/surety to the loan of Rs.50,00,000/- which Defendant Nos. 1 & 2 secured from the said UTI Bank. The Defendant Nos. 1 & 2, thereafter, repaid the loan to the extent of approximately Rs.40,00,000/-. However, the balance amount of Rs. 10,99,843/- was due. The said amount was not repaid by the Defendant Nos. 1 & 2 to the said UTI Bank before the last date of payment i.e. 23rd November, 2007. The Defendant No.3 thereafter, wrote a letter to the 3 Plaintiff on 29th May, 2008 stating therein that they propose to recover the said balance amount due by the Defendant Nos. 1 & 2 from the Plaintiff's Fixed Deposit Receipt. Accordingly, the said amount was debited from the Plaintiff's account on 12th December, 2007. 5. In the above circumstances, the Plaintiff has filed a suit mainly against Defendant Nos.1 & 2 for recovery of an amount of Rs.11,56,115/- with interest, by filing the aforesaid suit. I have perused the compilation of the original documents. The Exhibit "D" of the said compilation, discloses that the Plaintiff had deposited an amount of Rs. 56,00,000/- in the said UTI Bank and they agreed to stand as Guarantor/Surety in respect of loan of Rs.50,00,000/- which the UTI Bank agreed to give to Defendant Nos.1 & 2. Exhibit "E" is the letter dated 29th May, 2008 written by the Defendant No.3 to the Plaintiff pointing out that the balance amount of Rs.10,99,843/- is overdue by the Defendant Nos. 1 & 2 and their intention to recover this amount from the Plaintiff's Fixed Deposit. The statement annexed at Exhibit "F" also discloses that the Defendant No.3 recovered an amount of Rs.10,99,843/-. The said amount was debited from the Plaintiff's account on 12th December, 2007. 6. In the light of the above circumstances and in view of the provisions of section 149 of the Contract Act, 1872, the Plaintiff steps into the shoes of the creditors and is entitled to recover the said amount from the Defendant Nos.1 & 2. The statements made in the plaint and the original documents have not been controverted by the Defendants by appearing in the suit. In that view 4 of the matter, the contents of the plaint supported by the original documents are deemed to have been admitted by the Defendants. The Suit is therefore decreed in terms of prayer clause (a), in view of the provisions of Order 37 Rule 3 of th Code of Civil Procedure, 1908. Sd/- (R. V. MORE, J.)