DARYANANI (INDO SAIGON) CONSTRUCTION PVT. LTD. Vs. MANTRI REALTY LTD.
LAWS(BOM)-2017-8-205
HIGH COURT OF BOMBAY
Decided on August 22,2017

Daryanani (Indo Saigon) Construction Pvt. Ltd. Appellant
VERSUS
Mantri Realty Ltd. Respondents

JUDGEMENT

K.R.SHRIRAM,J. - (1.) Some time in 2008-2009, plaintiff gave a Short Term Loan of Rs. 15 crores to defendant No. 1 (in liquidation). This amount of Rs. 15 crores was disbursed in four tranches of Rs. 10 crores, Rs. 3 crores, Rs. 1 crore and Rs. 1 crore, respectively. For the purpose of making repayment, defendant No. 1 (in liquidation) issued a post dated cheque dated 30th June 2009 for Rs. 15 crores in favour of plaintiff. Copy of the cheque is annexed at Exh.B to the plaint. On 1st January 2009, a Deed of Guarantee was executed by the then Chairman and Managing Director of defendant No. 1 (in liquidation), a person by the name Sunil Mantri, who, in his personal capacity unconditionally and irrevocably guaranteed repayment of the said loan amount of Rs. 15 crores to plaintiff. Defendant No. 1 (in liquidation) also executed a Bill of Exchange for a valuable consideration of Rs. 15 crores in favour of plaintiff for availing of the Short Term Loan.
(2.) By a letter dated 10th February 2009, defendant No. 1 (in liquidation), while acknowledging receipt of Rs. 15 crores as loan and also while acknowledging the fact that defendant No. 1 (in liquidation) had issued a post dated cheque of Rs. 15 crores in favour of plaintiff, also gave as security to plaintiff by way of charge on 60 flats ad-measuring about 50214 sq.ft. approximately in a project that was being developed by defendant No. 1 (in liquidation) as per the details contained in the said letter. On 30th June 2009, when payment of Rs. 15 crores fell due, defendant No. 1 (in liquidation) requested plaintiff not to deposit the cheque and sought extension. This has been confirmed by defendant No. 1 (in liquidation) in its letter dated 3rd September 2009 (Exh.'F' to the plaint). Thereafter, defendant No. 1 (in liquidation) offered to plaintiff as a substitute to the 60 flats given as security, 27 flats in another project of defendant No. 1 (in liquidation) which was also accepted by plaintiff. On 30th July 2010, defendant No. 1 (in liquidation) paid to plaintiff a sum of Rs. 2 crores and on 3rd August 2010, paid a sum of Rs. 1 crore leaving a balance of Rs. 12 crores as due and payable to plaintiff. Defendant No. 1 (in liquidation) also issued a cheque dated 1st April 2011 for a sum of Rs. 12 crores towards repayment of the balance amount of Rs. 12 crores. This cheque was not deposited by plaintiff at the request of defendant No. 1 (in liquidation).
(3.) By a letter dated 6th July 2012, defendant No. 1 (in liquidation) sought balance confirmation from plaintiff of Rs. 12 crores and in response to the balance confirmation, plaintiff has stated that the amount of Rs. 12 crores is payable together with interest thereon at 18% per annum. It is to be noted that for the first time, plaintiff has referred to any interest as payable and rate of interest. Thereafter, by a letter dated 30th April 2013, defendant No. 1 (in liquidation) once again forwarded to plaintiff a fresh post-dated cheque for Rs. 12 crores towards repayment of loan. This cheque dated 15th October 2013 (Exh."N1" to the plaint), when deposited on 15th October 2013, was dishonoured due to insufficient funds. Counsel for plaintiff, therefore, is seeking a summary decree on the basis that there has been an acknowledgement of debt and defendant has issued a cheque which came to be dishonoured.;


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