Madras High Court
Neelam Brahmbhatt vs Neeti Pramod Naik on 19 January, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
C.S. (Comm. Div.) No.251 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2024
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.S. (COM. DIV.) No.251 of 2022
1. Neelam Brahmbhatt
Represented by her Power of Attorney Holder
Darshan Khakhar
2 Devendra Brahmbhatt
Represented by his Power of Attorney Holder
Darshan Khakhar
3. Darshan Khakhar
4. Kunal Patel
Represented by his Power of Attorney Holder
Darshan Khakhar
5. Harshada Brahmbhatt
Represented by her Power of Attorney Holder
Darshan Khakhar .. Plaintiffs
Versus
1. Neeti Pramod Naik
Wife of Pramod Naik
4/601, Challenger Tower,
Thakur Village,
Kandivali East,
Mumbai 400101.
and Flat: No.11, First Floor, Aura 1,
1, 1st main Road,
Shastri Nagar, Adyar,
Chennai-600 020.
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C.S. (Comm. Div.) No.251 of 2022
2. Suryakant Dhondu Walavalkar
C 1003/4,
Dheeraj Hill view Tower,
Near Dheeraj Upvan,
Opp Siddharth Nagar,
Borivali (East) Mumbai-400 066.
3. Prathap B
Flat B1, 10/53, Shivani,
3 Seaward Road,
Valmiki Nagar,
Thiruvanmiyur,
Chennai, Tamil Nadu.
4 Kkrowten India Enterprises Private Limited
CIN No U24233AP2008PTC059985
having registered office at No.1,
First Main road, Besant Nagar,
Chennai 600 090. .. Defendants
Prayer : PLAINT FILED UNDER ORDER VII RULE 1 OF THE
ORIGINAL SIDE RULES READ WITH ORDER XXXVII RULES 1 & 2
OF THE CODE OF CIVIL PROCEDURE, 1908 AND SECTION 2(1)
(c)(i) OF THE COMMERCIAL COURTS ACT, 2015 to pass a judgment
and decree against the Defendants 1 to 4 as follows:
a Directing the Defendants, to jointly and severally, pay the
Plaintiffs a sum of INR 10,83,99,250 (Ten Crores Eighty Three Lakhs
Ninety Nine Thousand and Two Hundred and Fifty Rupees), together
with interest at the rate of 12% per annum on INR 8,56,00,000 (Eight
Crore and Fifty Six Lakh Rupees) from 06.06.2022 till the date of
realisation
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C.S. (Comm. Div.) No.251 of 2022
b. To pay the costs of the suit.
For Plaintiffs : Ms.Aditi Ashok
For Defendants : Mr.Dwarakesh Prabhakaran
for D3
D1, D2 & D4 – set exparte on
03.01.2024.
JUDGMENT
This Court by its order dated 5.12.2023 in A. No.3941 of 2023 in C.S. (Comm. Div.) No.251 of 2022 directed the applicant / 3rd defendant to deposit a sum of Rs.7,25,69,250/- to the credit of the suit, within a period of four weeks from the date of receipt of a copy of the said order and on deposit of the said sum, within the stipulated period, the applicant / 3rd defendant was granted leave to defend the suit by filing a written statement, within a period of two weeks thereafter.
2. It is now brought to the notice of this Court by the learned counsel for the plaintiffs as well as the learned counsel for the 3rd defendant that the conditional order passed by this Court as aforesaid could not be complied with by the 3rd defendant. In view of the same, the suit will have to be decreed as prayed for by the plaintiffs in the suit as against the 3rd defendant. The suit summons has already been served on https://www.mhc.tn.gov.in/judis 3/12 C.S. (Comm. Div.) No.251 of 2022 remaining defendants. They have chosen not to enter appearance in this suit despite receipt of the suit summons. Only the 3rd defendant alone has filed an application seeking for leave to defend. Being a summary suit and the defendants 1,2 and 4 have chosen not to defend the suit and they have already been set exparte by this Court on 03.01.2024 and the application filed by the 3rd defendant seeking for leave to defend has also been disposed of by this Court on 05.12.2023 and the 3rd defendant having not complied with the condition imposed in the said order, the suit will have to be decreed in favour of the plaintiffs as prayed for against all the defendants.
3. The following documents have been filed by the plaintiff along with the plaint :
Sl.No. Date Description Parties to
document
1 19.03.2020 Power of attorney executed by Plaintiff No.1
plaintiff No.1 in favour of plaintiff and defendant No.3 No.3 2 18.03.2020 Power of attorney executed by Plaintiff No.2 plaintiff No.2 in favour of Plaintiff and defendant No.3 No.3 3 19.03.2020 Power of attorney executed by Plaintiff No.4 Plaintiff No.4 in favour of Plaintiff and defendant No.3 No.3 https://www.mhc.tn.gov.in/judis 4/12 C.S. (Comm. Div.) No.251 of 2022 4 18.03.2020 Power of attorney executed by Plaintiff No.5 plaintiff No.5 in favour of Plaintiff and defendant No.3 No.3 5 03.03.2020 Death Certificate of the Pramod Statutory V.Naik record 6 Extract from the Ministry of Statutory Corporation Affairs of details of record Defendant No.4 7 Excel sheet containing the particulars and the mode of transfer of the loan amount with the respective dates and security given against each 8 20.02.2019 Loan No.1 of Plaintiff No.1 of INR 1 Plaintiff No.1 08.04.2019 Crore – Promissory notes dated and defendants 08.04.2019 20.02.2019, loan agreement and 08.04.2019 corporate guarantee dated 08.01.2020 08.04.2019, personal guarantee by 08.04.2019 defendant No.2 and 3 dated 08.04.2019 and 08.01.2020 respectively letter of general lien and set off dated 08.04.2019 in respect of plaintiff No.1 9 18.02.2019 Loan No.2 of Plaintiff No.1 of INR 1 Plaintiff No.1 08.04.2019 Crore – Promissory note dated and defendants 08.04.2019 18.02.2019, loan agreement and 08.04.2019 corporate guarantee dated 09.01.2020 08.04.2019, personal guarantee by 08.04.2019 defendant No.2 and 3 dated 08.04.2019 and 09.01.2020 respectively letter of general lien and set off dated 08.04.2019 in respect of plaintiff No.1 10 27.09.2018 Loan amount of INR 25 lakhs given Plaintiff No.2 09.01.2019 by Plaintiff No.2 - Promissory note and defendants 09.01.2019 dated 27.09.2018, loan agreement , 09.01.2019 corporate guarantee, personal 09.01.2020 guarantee of defendant No.2, letter of 09.01.2019 general lien and set off of plaintiff No.2 all dated 09.01.2019 and personal guarantee of defendant No.3 dated 09.01.2020.
https://www.mhc.tn.gov.in/judis 5/12 C.S. (Comm. Div.) No.251 of 2022 11 04.09.2018 Loan amount of INR 20 lakhs given Plaintiff No.3 09.01.2019 by Plaintiff No.3 - Promissory note and defendants 09.01.2019 dated 04.09.2018, loan agreement 10.01.2019 dated 10.01.2019, corporate 09.01.2020 guarantee dated 10.01.2019, personal 09.01.2019 guarantee by defendant No.2 dated 10.01.2019 Defendant No.3 dated 09.01.2020 and the letter of general lien and set off in respect of plaintiff No.3, dated 09.01.2020.
12 06.12.2018 Loan amount No.1 – INR 1 Crore Plaintiff No.4 03.01.2019 given by plaintiff No.4 – Promissory and defendants 03.01.2019 Note dated 06.12.2018, loan 03.01.2019 agreement, Corporate Guarantee, 09.01.2020 Personal guarantee of defendant No.2 03.01.2019 dated 03.01.2019 and personal guarantee of defendant No.3 dated 09.01.2020 and the letter of general lien and set off in respect of Plaintiff No.4, dated 03.01.2019.
13 06.08.2018 Loan amount No.2 – INR Plaintiff No.4 06.08.2018 1,35,00,000 given by plaintiff No.4 – and defendants 06.08.2018 Promissory Note, loan agreement, 06.08.2018 Corporate Guarantee, Personal 09.01.2020 guarantee of defendant No.2 dated 06.08.2018 06.08.2018 and personal guarantee of defendant No.3 dated 09.01.2020 and the letter of general lien and set off given by Pramod Naik in respect of Plaintiff No.4, dated 06.08.2018. 14 11.07.2018 Loan amount No.1– INR Plaintiff No.5 11.07.2018 2,51,00,000 given by plaintiff No.5 – and defendants 11.07.2018 Promissory Note, loan agreement, 11.07.2018 Corporate Guarantee, Personal 09.01.2020 guarantee of defendant No.2 dated 11.07.2018 11.07.2018 and personal guarantee of defendant No.3 dated 09.01.2020 and the letter of general lien and set off given by Pramod Naik in respect of Plaintiff No.5, dated 11.07.2018.
15 27.03.2019 Loan amount No.2 – INR 45,00,000 Plaintiff No.5 https://www.mhc.tn.gov.in/judis 6/12 C.S. (Comm. Div.) No.251 of 2022 08.04.2019 given by plaintiff No.5 – Promissory and defendants 08.04.2019 Note dated 27.03.2019, loan 08.04.2019 agreement, Corporate Guarantee, 09.01.2020 Personal guarantee of defendant No.2 08.04.2019 dated 08.04.2019 and personal guarantee of defendant No.3 dated 09.01.2020 and the letter of general lien and set off given by Pramod Naik in respect of Plaintiff No.5, dated 08.04.2019.
16 17.04.2019 Loan amount No.3 – INR 55,00,000 Plaintiff No.5 06.05.2019 given by plaintiff No.5 – Promissory and defendants 06.05.2019 Note dated 07.04.2019, loan 06.05.2019 agreement, Corporate Guarantee, 09.01.2020 Personal guarantee of defendant No.2 06.05.2019 dated 06.05.2019 and personal guarantee of defendant No.2 dated 06.05.2019 and personal guarantee of defendant No.3 dated 09.01.2020 and the letter of general lien and set off given by Pramod Naik in respect of Plaintiff No.5, dated 06.05.2018. 17 10.01.2020 Loan amount No.4 – INR 25,00,000 Plaintiff No.5 10.01.2020 given by plaintiff No.5 – Promissory and defendants 10.01.2020 Note, loan agreement, Corporate 10.01.2020 Guarantee, Personal guarantee of and 10.01.2020 defendant No.3 and the letter of general lien and set off given by Pramod Naik in respect of Plaintiff No.5, all dated 10.01.2020.
18 29.04.2020 First demand was sent by way of email 19 06.06.2022 Excel sheet pertaining to each plaintiff, the interest rate amounts repaid and amount outstanding 20 Various dates Case status from e-courts website in Statutory https://www.mhc.tn.gov.in/judis 7/12 C.S. (Comm. Div.) No.251 of 2022 respect of Section 138 proceedings record under the Negotiable Instruments Act before the Hon'ble Chief Judicial Magistrate of First Class, Khamb hat as against the security cheques provided to the Plaintiffs No.1, 2 and 5 and in respect of Plaintiff No.3 and 4 at Ahmedabad, Gujarat.
21 Auditors report and financial Statutory statements of Financial Year ended record 31.03.2018, unaudited reports for the years 31.03.2019 and 31.03.2020 22 19.09.2019 Email from Pramod Naik to Plaintiff Pramod Naik no.3 and plaintiff No.3 23 12.06.2018 Networth certificates of Pramod Naik NA and Defendant No.2 and Defendant No.3 10.01.2020 24 16.07.2022 Letter of Undertaking for repayment Defendant given by Defendant No.3 No.3
4. The aforesaid documents are marked as Exhibits viz., Exs.P1 to P24. The suit claim is based on loan documents which are marked as Exhibits and it is for a liquidated sum of money. The suit claim has been proved as against all the defendants who are jointly and severally liable to pay the suit claim.
5. The suit has been filed as a summary suit seeking recovery of a sum of Rs.10,83,99,250/- together with interest at the rate of 12% p.a. on Rs.8,56,00,000/- from 06.06.2022 till the date of realisation.
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6. The plaintiff has lent money to Pramod V. Naik, who was the Managing Director of the 4th defendant Company on various dates as disclosed in paragraph No.12 of the plaint for the benefit of the 4 th defendant Company. Mr.Pramod V. Naik and the defendants 2 and 3 stood as personal guarantors and the 4 th defendant stood as corporate guarantor for the due repayment of the loan by Pramod V. Naik. The loans were given by the respective plaintiffs only to bail out the 4th defendant Company from its precarious financial position. The documents marked as Exhibits prove the contentions of the plaintiffs as averred in the plaint. The promissory notes, loan agreements, personal guarantee, corporate guarantees, letter of general lien and set off have been executed by the respective defendants in favour of the plaintiffs to secure the loan amounts repayable to the respective plaintiffs and the said documents have been filed along with the plaint and have been marked as Exhibits. The defendants have breached their contractual obligations and the security cheques issued by Pramod V. Naik and other defendants have also been dishonoured and the same is also subject matter of Section 138 proceedings instituted under the Negotiable instruments Act, 1881.
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7. Being a liquidated sum of money based on promissory notes, personal guarantee, corporate guarantees, letter of general lien and set off and other loan documents, the summary suit filed by the plaintiffs against the defendants is maintainable. All the defendants excepting for the defendant No.3 had remained exparte and they have also been set exparte by this Court on 03.01.2024. The application filed by the 3rd defendant seeking for leave to defend has also been disposed of by this Court by its order dated 05.12.2023 by imposing certain conditions.
However, admittedly, the said conditions has not been fulfilled despite the lapse of the stipulated period.
8. For the foregoing reasons, the suit claim is proved by the plaintiffs and this Court passes a judgment and decree against the defendants jointly and severally by directing them
a) To pay the plaintiffs a sum of Rs.10,83,99,250/- together with interest at the rate of 12% p.a. on INR 8,56,00,000/- from 06.06.2022 being the date of the plaint till the date of realisation.
b) The defendants are also directed to pay the costs of the suit to https://www.mhc.tn.gov.in/judis 10/12 C.S. (Comm. Div.) No.251 of 2022 the plaintiffs.
19.01.2024 Index: Yes/ No Speaking order / Non speaking order Neutral citation : Yes / No vsi2 https://www.mhc.tn.gov.in/judis 11/12 C.S. (Comm. Div.) No.251 of 2022 ABDUL QUDDHOSE, J.
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