Delhi High Court
Modern Sixteen Cine Laboratory ... vs Crb Capital Markets on 26 July, 2002
Author: S Mukerjee
Bench: S Mukerjee
JUDGMENT
S. Mukerjee, J.
1. This is a summary suit filed under Order
37 of CPC. Defendants 1 and 2 were served through
official liquidator since these companies are in
liquidation. Defendant No.3 has been served by
substituted service by publication in the newspaper in
terms of order dated 25.9.2001.
2. After the service was complete the matter
was listed before the Joint Registrar on 22.5.2000 but
neither the defendants nor any counsel appeared on their
behalf. Thereafter the matter came up before this Court
on 6.7.2002 on which date also no one appeared on behalf
of the defendant. After hearing the submissions of
learned counsel for the plaintiff, the matter was
reserved for orders.
3. The defendants have been duly served, and
having failed to appear despite being so served, the
result would be as contemplated under Order 37 Rule 3
Sub-rule 6(a) CPC which provides for the consequences of a
defendant being served but thereafter neither entering
appearance nor filing leave to defend.
4. Learned counsel for the plaintiff submits
that the only consequence of the defendant not filing
leave to defend is that the decree as claimed should be
allowed in favor of the plaintiff.
5. Even otherwise I have gone through the
record and find that the amount claimed in the suit is
covered by negotiable instruments in the form of cheque
bearing No. 440601 dated 20.5.97 drawn on Bank of Baroda
for Rs. 10,88,670/- which cheque had been issued towards
repayment of discounted Bill of Exchange No.304/96-97
dated 19.2.97 drawn by defendant No.3 and accepted by
defendant No.2, and payable to defendant No.1 on the
terms and conditions mutually agreed between them.
6. I find that plaintiff has established an
un-rebutted right to the proceeds of said post-dated
cheque No.440601 for an amount of Rs. 10,88,670/- date
20.5.97.
7. The said cheque when presented, was
dishonoured with the remarks 'insufficient funds'. The
plaintiff served notice upon defendant No.1 through
advocate calling upon defendant to make payment of the
amount of Rs. 10,88,670/- with interest @ 32% per annum
from due date till date of actual payment. Thereafter
further notices through plaintiff's advocate, were
addressed on 30.5.97 and 27.1.97.
8. Subsequently this Court appointed an
Official Liquidator attached to this Court as the
Provisional Liquidator of defendants 1 and 2 and
thereupon the plaintiff also addressed a letter dated
27.7.97 to the said liquidator and thereafter the present
suit was filed after obtaining leave from the Company
Court vide order dated 29.3.2000 and 4.4.2000.
9. Since the claim in the suit is of the
nature contemplated by Order xxxvII CPC, and defendants
have not filed leave to defend, therefore in terms of
Order 37 Rule 3 Sub-rule 6(a) of CPC, the plaintiff
became entitled to judgment forthwith. Accordingly the
suit of the plaintiff is entitled to be decreed in terms
of prayer made in the plaint, and a decree for Rs.
10,88,670/- Along with interest @ Rs. 18% pendente lite and
future
10. As such in view of the un-rebutted
averments of the plaintiff which are duly verified and
also supported by the documents filed on record, the
plaintiff is clearly entitled to a decree in the sum of
Rs.10,88,670/- Along with interest thereon @ 18% from
20.5.97 till the date of institution of the suit and for
further pendente lite and future interest till the date
of realisation of the amount also @ 18% subject to
exclusion of any period which may be established on
record in terms of the provisions of Companies Act 1956.
11. Suit is accordingly decreed with costs
and interest @ 18% from the date of institution of the
suit, pendente lite and future.
File be consigned to records.
