Bombay High Court
M/S. Brainer Impex Ltd. (Under ... vs Warana Industries Ltd. And 2 Others on 20 August, 2025
Author: Abhay Ahuja
Bench: Abhay Ahuja
2025:BHC-OS:13946
905. COMSS 17-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUMMARY SUIT NO. 17 OF 2023
M/s Brainer Impex Ltd. (Under Liquidation) ...Plaintiff
V/s.
Warana Industries Ltd and Ors. ...Defendants
Mr. Anshul Anjarlekar i/b Raval Shah,Advocate for the Plaintiff.
None for the Defendants.
CORAM : ABHAY AHUJA, J.
DATE : 20th AUGUST, 2025
P.C. :
1. This matter was kept back in the morning session as the learned Counsel for the Plaintiff was not available then.
2. When the matter is called out in the afternoon session, Mr. Anjarlekar, learned Counsel appears for the Plaintiff and submits that since despite service of the writ of summons and the plaint upon the Defendants, no appearance has been entered, this Court in accordance with Order XXXVII Rule 2(3) of the Code of Civil Procedure, 1908 ("CPC") decree the Suit.
3. Mr. Anjarlekar, learned Counsel appearing for the Plaintiff has submitted that the service to the Defendants No. 1 and 3 has been effected by paper publication in Free Press Journal and Navshakti on 16th July, 2024 and the Bailiff has filed affidavit of service dated 6 th Nikita Gadgil 1/7 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:35:36 :::
905. COMSS 17-23.doc May, 2025. That as regards the Defendant No.2, the service has been effected on 15th April, 2023 which is evidenced by affidavit of service of Bailiff dated 4th August, 2023.
4. It is submitted by Mr. Anjarlekar, learned Counsel for the Plaintiff that at present the Plaintiff is represented by the liquidator pursuant to proceedings before the NCLT under the Insolvency and Bankruptcy Code, 2016.
5. It has been submitted that the Plaintiff is engaged in business of import and export of dairy machinery, iron and steel etc. and the Defendant No.1 is engaged in the business of sourcing and arranging import and export of second hand equipment pertaining to the same. The Defendants No. 1 and 2 have common directors and proprietor of the Defendant No.3 is one of the director of the Defendants No. 1 and
2. That the Plaintiff and the Defendant No.1 had trade relations since 2012, however, on account of shortage of working capital, the Defendant No.1 had acknowledged the accounts as sent by the Plaintiff.
6. On 2nd September, 2011, the Plaintiff and the Defendant No.1 executed an Indenting Agreement for sale of dairy machineries to one M/s Sungrow Australia Pvt. Ltd. in Australia and Plaintiff acted as Nikita Gadgil 2/7 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:35:36 :::
905. COMSS 17-23.doc Indenter for the Defendant No.1. On 6 th September, 2011 and 21st March, 2012, the Defendant No.1 executed two corporate guarantees for loan amount respectively for Rs. 5 Crores (Cosmos Co-operative Bank) and Rs. 10 Crores (Bank Of Baroda), which was availed by the Plaintiff on behalf of the Defendant in compliance of the Indenting Agreement.
7. It is submitted that the transaction involved the following aspects:-
a. Sungrow Australia would inform the Plaintiff of their requirement. b. Plaintiff would raise a purchase order on Defendant No.1. c. Plaintiff would raise invoice for providing machinery as per purchase order.
d. Plaintiff would make payment against invoices for supply of machinery.
e. Plaintiff would supply the machinery to Sungrow Australia and raise invoices on Sungrow Australia.
f. As per clause 9 of the Agreement, on Sungrow's failure to make the payment, the Defendant No. 1 would be liable to make the payment.
8. Mr. Anjarlekar would submit that the transaction under the Indenting Agreement was successfully completed and thereafter, on 15 th December, 2012, the Plaintiff entered into fresh Indenting Agreement with the Defendants No. 1 and 2. That the Defendant No.3 mortgaged immovable property to secure the advances made by the Plaintiff to the Defendant No.1.
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905. COMSS 17-23.doc
9. On 18th December, 2012, the Defendant No. 2 executed a corporate guarantee and the Defendant No.3 executed Mortgage Deed with the Cosmos Bank.
10. Thereafter, on 22nd February, 2013, the Defendants No. 2 and 3 executed affidavit-cum-declaration, after which on 22 nd March, 2013, the Defendants No. 2 and 3 executed a Supplementary Mortgage Deed for ratification of paragraph 1 of the Mortgage Deed dated 18 th December, 2012.
11. Mr. Anjarlekar submits that the Plaintiff raised further invoices on Sungrow for a total amount of AUD 720,950/- towards export / supply of machineries / products as per the Indenting Agreement respectively on 22nd February, 2013, 6th September, 2013 and 17th September, 2013 and the Sungrow made payments of these invoices.
12. After full payment, products were supplied by the Defendant No. 1 to the Plaintiffs under three invoices on 20 th December, 2013 and 10th March, 2014 amounting amounting to AUD 16,57,867/- equivalent to Rs. 8,48,33,054.39/-. It is submitted that the Plaintiff made a total payment of Rs. 34,47,90,000/- to the Defendant No.1. That thereafter, a statement was prepared by the Plaintiff showing the default by the Nikita Gadgil 4/7 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:35:36 :::
905. COMSS 17-23.doc Defendant No. 1 and the interest calculated by the Plaintiff on the defaulted payment.
13. That after setting off the amount payable under various invoices raised by the Defendant No.1 and after taking into account the less payments received from the Defendant No.1 on 1 st August, 2018, Rs. 13,64,76,643/- was due and payable along with interest @ 14% p.a. amounting upto Rs. 19,52,83,065/- by the Defendant No.1.
14. Mr. Anjarlekar submits that since no payments came through for Rs. 33,17,59,710/-, the Commercial Summary Suit has been filed on 17th October, 2018 and as per particulars of claim Rs. 49,42,73,458/- is due and payable.
15. Mr. Anjarlekar submits that since no appearance has been entered within the stipulated period of 10 days despite service of summons, this Court decree the Suit in terms of prayer Clauses (a) and
(b) of the Plaint.
16. I have heard the learned Counsel and considered the submissions.
17. Under Order XXXVII Rule 2(3), it is provided that unless the Defendants enter appearance within 10 days of service of writ of Nikita Gadgil 5/7 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:35:36 :::
905. COMSS 17-23.doc summons and the copy of the plaint with annexures the allegations in the plaint shall be deemed to be admitted and the Plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of decree and such sum for costs as may be determined.
18. A perusal of the Plaint indicates that the requirements of Rule 2(1) of Order XXXVII with respect to the specific averments to the fact that the Suit is filed under Order XXXVII of the CPC and that no relief which does not fall within the ambit of this Rule has been claimed in the Plaint as well as the inscription as required under Rule 2(1)(c) have been met. That the summons is as per the form prescribed and has been served as per the affidavits of service filed in this Court.
19. It is clear from the facts above that the Defendants have not entered appearance within the stipulated period of 10 days after having been served the writ of summons and the plaint. Accordingly, this Court under Order XXXVII Rule 2(c) of the CPC holds that the Plaintiff is entitled to a decree as prayed for.
20. The Suit is accordingly decreed in terms of prayer Clauses (a) and (b) as above, which read thus:-
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905. COMSS 17-23.doc "(a) That the Defendants, jointly and severally be ordered and decreed to pay the plaintiff an amount Rs.
33,17,59,710/- as per the particulars of claim being Exhibit "M" to the Plaintiff with further interest of @ 14% 18% 21% Per annum on the principal amount of Rs. 13,64,76,643.00/- from the date of suit until payment and / or realization thereof.
(b) In addition to prayer clause (a), the defendants, jointly and severally be ordered and decreed to pay the plaintiff an amount of Rs. 16,25,13748.00/- as per the particulars of claim being Exhibit "M" to the Plaintiff with further interest of 14%18%21% per annum on the principal amount of Rs. 8,55,62,515.87/- from the date of suit until payment and / or realization thereof."
21. Considering that the Commercial Suit has been decreed, in view of the Section 35 of the CPC, as amended by the Commercial Courts Act, 2015, as applicable to commercial disputes, this Court also awards costs in the matter, to be worked out by the Taxing Master of this Court.
22. The Commercial Summary Suit to accordingly stand disposed as above. Decree be drawn up expeditiously.
(ABHAY AHUJA, J.) Digitally signed by NIKITA NIKITA YOGESH YOGESH GADGIL GADGIL Date:
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