TMI Blog2023 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that under Cl.(d) of section 68(1) the official assignee would be a necessary party only if the suit was relating to the property of the insolvent , and the term relating to cannot be taken to mean affecting . Thus, the Defendant has been adjudicated insolvent pending the proceeding, as it is a money decree and does not relate to the property of the defendant section 68(1)(d) is not attracted and the official assignee is not required to be made a necessary party. Thus, as per Order XXXVII Rule 6 (a) of the Code of Civil Procedure, the plaintiff is entitled to a judgment forthwith - suit disposed off. - KAMAL KHATA, J. For the Plaintiff : Mr. Rohaan Cama a/w. Ms. Saloni Shah i/b. DSK LEGAL For the Defendants : None JUDGMENT: 1. The present Suit is filed in its Commercial Division under Order XXXVII of the Code of Civil Procedure. The plaintiff seeks an order and decree against the defendants to jointly and severally pay to the plaintiff a sum of Rs 15,80,00,000/- along with IRR @ 20% per annum on Rs. 15,80,00,000/- from 31st March 2018 till 31st July 2020, amounting to Rs. 24,19,35,000/- along with further IRR @ 20% per annum from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with clause 7 or 1.2 (b) of the Settlement Agreement. 7. Based on the covenants and promises recorded in the Settlement Deed, the defendants executed unconditional and irrevocable Deeds of Guarantee dated 21st March 2018 in favour of the plaintiff. It is stated that the terms of both the Deeds of Guarantee are identical to each other. Pursuant to the Settlement Agreement, the plaintiff was paid the Refinancing Amount by the Company on 31st March 2018. 8. As per the Settlement Agreement, the Defendant no. 1 provided a cheque bearing no. 472432 drawn on Cosmos Bank, Vile Parle Branch, Mumbai for the amount of Rs. 15,80,00,000/-. The Primary Obligor also issued a demand promissory note dated 21st March 2018 for an amount of Rs. 15,80,00,000/-. In addition to the aforesaid, a Debenture Trust Deed ( GDTD ) was executed between the Primary Obligor, Defendants, and Plaintiffs for 5 secured redeemable and optionally convertible debentures of the Primary Obligor aggregating to Rs. 5,00,000/-. The repayment obligation under the GDTD was secured inter alia by a mortgage of 36 flats in the Prasadam Project allotted by the Company to the Primary Obligor under an allotment le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The cheque provided by the defendant no. 1 was dishonoured with the remark funds insufficient when deposited by the plaintiff. It is stated that the Deeds of Guarantee executed by the defendants in Favor of the plaintiff are unconditional and irrevocable and the defendants are jointly and severally bound and liable for the payment of the difference amount. The plaintiffs have accordingly filed a suit on 12th August 2020 to recover a sum of Rs. 15,80,00,000/- along with IRR at the rate 20% per annum from 31st March 2018 till 31st July 2020 amounting to Rs. 24,19,35,000/- along with further IRR @ 20% per annum from 1st August 2020 till payment and a realization thereof and interest at the rate of 2% per month on the amount of Rs. 22,58,50,000/- from 16th March 2020 till June 31st July 21st 2020 amounting to Rs. 17,07,256/- along with further interest of 2% per month on the amount of Rs. 22,58,50,000/- from 1st August 2020 till payment and realization thereof. 15. The learned counsel for the plaintiff submitted that the defendants have been adjudged to be insolvents by an order dated 24th June 2022 after filing of the present suit. It is submitted that they have filed a reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly submitted that the defendant being adjudged insolvent subsequent to the filing of the suit would not necessitate the official assignee being a party to the present suit inasmuch as the claim in the suit which is of monetary nature and does not include the property of the insolvent, therefore, would not require the presence or adding of the official assignee in this commercial suit. 19. The learned counsel relied upon the case of Om Prakash Nihalani and Anr. V/s. S. M. S. Thakur 2009 (2) Mh.L.J. page 905 to submit that the division bench of our court had concurred with the view taken by the Madras High Court in the case of Official Assignee, High Court Madras (supra). The learned counsel then relied upon the decision of decision in the case of IDBI Trusteeship Services Limited (supra) to submit that the present case was a clear case and the defendant had made out no substantial defense nor had read raised any genuine tribal issues. He therefore, urged that the leave to defend the suit should be refused and the plaintiff would be entitled to a judgment forthwith. 20. The writ of summons was duly served on the defendants on 2nd February 2021 and the affidavit pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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