Banwari Lal Behl (Dead Through ... vs Devinder Kumar Singari And Ors.
2007 Latest Caselaw 401 Del

JUDGMENT

A.K. Sikri, J.

1. By means of this suit the plaintiff seeks to recover a sum of Rs. 20,17,000/- from the defendants. Defendant No. 1 is stated to be the sole proprietor of defendant No. 2. As per the plaintiff, defendant No. 1 is his cousin. He had approached the plaintiff on 26.2.2001 with a request to give him some loan as he was facing financial stress and had to meet various business commitments. The plaintiff agreed to give the loan and gave a sum of Rs. 7,00,000/- vide cheque No. 211075 dated 26.2.2001 drawn on Punjab National Bank, Gandhi Nagar, Delhi-31. This cheque was duly encashed by the defendant No. 1 and, thus, amount was received by them. The defendants also executed and delivered the following documents to the plaintiff:

(a) Demand Promissory Note dated 26.2.2001 for Rs. 7,00.000/-.

(b) Receipt dated 26.2.2001 for Rs. 7,00,000/-.

(c) Post-dated Cheque No. 049577 dated 26.2.2002 for Rs. 7,00,000/- drawn on Vijaya Bank, Bhikaji Cama Place, New Delhi-66 in favor of the plaintiff.

(d) Mortgaged Deed dated 26.2.2001 by deposit of title deeds.

2. As a security for repayment of the amount the defendants also deposited title deeds of immovable property, i.e. land measuring 1 Bigha 5 Biswas in Khasra No. 40/10, situated at Abadi village Mundka, Delhi, creating equitable mortgage in favor of the plaintiff over the said property. The particulars of this property are as under:

  Date of Mortgage               : 26.2.2001
Name of Mortgagor              : D.S. Trading Co. through prop.
                                 Davinder Kumar Singari
Name of Mortgagee              : Banwari Lal Behl
Sum secured                    : Suit amount
Rate of interest               : 2 1/2 per cent i.e. 30% p.a.
Property mortgaged             : Land measuring 1 Bigha 5 Biswas out of
                                 Khasra No. 40/10, situated at Abadi Village
                                 Mundka, Delhi State, Delhi.
Amount due                     : Rs. 20,17,000.00

 

3. The defendants also confirmed that these properties shall remain mortgaged with the plaintiff by way of security and the plaintiff will hold the same for clearance of entire liability of the defendants towards the plaintiff. The loan was to be paid back within one year and for that purpose the defendants had issued post-dated cheque No. 049577 dated 26.2.2002 for Rs. 7,00,000/- drawn on Punjab National Bank, Bhikaji Cama Place, New Delhi in favor of the plaintiff. Another cheque of Rs. 50,000/- was also issued towards part payment of interest. However, both these cheques were dishonoured and when in spite of notice given under Section 138 of the Negotiable Instruments Act payment was not made, the plaintiff filed complaints against the defendants, which are pending before the learned Metropolitan Magistrate, Delhi. During the pendency of these proceedings, the defendants have made payment of Rs. 20,000/-. The plaintiff has, thus, filed this suit for recovery of Rs. 7,00,000/- along with interest claimed at 30% per annum from 27.2.2001 to 27.1.2004 when the suit is filed. After giving adjustment of Rs. 20,000/- paid by the defendants against the interest due, the interest amount claimed is Rs. 8,17,000/-. The plaintiff has also claimed damages/compensation in the sum of Rs. 5,00,000/ and in this manner, total claim of Rs. 20,17,000/- is preferred. The plaintiff has prayed for decree in the aforesaid amount along with 30% interest from 28.1.2004 till the date of decree as well as future interest at the same rate. Mortgage decree of the property in question is also prayed for as per Order 34, CPC.

4. The defendants were duly served with the summons and they appeared through Counsel. However, the plaintiff died during the proceedings. Application was filed for bringing his LRs on record. The plaintiff died leaving behind his widow, two sons and four daughters. However, the LRs agreed that name of one of the sons, namely, Sh. Dev Kumar Behl alone be substituted in place of the plaintiff. However, order dated 2.3.2005 was passed impleading all the seven LRs as the plaintiff.

5. The defendant No. l filed written statement, which was adopted by the defendant No. 2 as well. However, since there was a delay in the filing of the written statement, on 28.4.2005 Counsel for the plaintiff insisted that unless there was an application seeking condensation of delay and explaining the circumstances in which the delay occurred, the written statement could not be taken on record.

6. The defendants were accordingly directed to make appropriate application for condensation of delay. Such an application was not filed and the defendants rather stopped appearing thereafter. On 19.1.2006, order was passed proceeding ex parte against the defendants. The defendants thereafter moved application for setting aside the ex parte order along with application for condensation of delay. Replies to these applications were filed. However, the defendants again stopped appearing. These application were, therefore, dismissed in default on 19.10.2006. The plaintiff was allowed to produce its evidence in support of the suit claim by way of affidavits.

7. Sh. Dev Kumar Behl has filed his affidavit making averments on oath, which are stated in the plaint and taken note of above. He has also accepted the documents, namely, demand promissory note of Rs. 7,00,000/-, receipt for Rs. 7,00,000/-, post-dated cheque dated 26.2.2002 for Rs. 7,00,000/- as well as mortgage deed dated 26.2.2001 by deposit of title deeds. Mortgage Agreement is also filed as Ex. P-E. It is clear from the aforesaid unrebutted testimony that the defendant had taken a loan of Rs. 7,00,000/- from the deceased plaintiff and executed the aforesaid documents. For the repayment of the loan he also gave postdated cheque. The defendants also created equitable mortgage of the property, i.e. land measuring 1 Bigha 5 Biswas in Khasra No. 40/10, situated at abadi village Mundka, Delhi. With the dishonour of the cheque it is clear that the loan has not been repaid. The plaintiffs are accordingly entitled to decree in the sum of Rs. 7,00,000/- as principle amount. However, claim of interest at the rate of 30% per annum is quite exorbitant and it would be reasonable to grant interest at the rate of 12% per annum for all this period, i.e. pre-suit, pendente lite as well as future interest.

8. Preliminary decree in respect of mortgage of the property, i.e. land measuring 1 Bigha 5 Biswas in Khasra No. 40/10, situated at abadi village Mundka, Delhi, is hereby passed in favor of the plaintiffs and against the defendants. In case the amount, as decreed, is not paid within six months, the plaintiffs shall be entitled to seek final decree for sale of the mortgaged property to realise the decretal amount. Decree be drawn accordingly.