Shri Ankit Singh Dabas And Another vs Shri Kuldeep Singh And Another
2009 Latest Caselaw 1256 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


+          IA No. 11446/2007 & CS(OS) No. 622/2007


                Date of Decision: April 08, 2009


# SHRI ANKIT SINGH DABAS & ANOTHER                ..... PLAINTIFFS

!                     Through: Mr.R.S. Tomar, Advocate


                              VERSUS


$ SHRI KULDEEP SINGH & ANOTHER                    .....DEFENDANTS

^                     Through: Nemo


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL) This is a suit for recovery under Order XXXVII, CPC. The

plaintiff no. 1 and defendant no. 2 are real brothers. Plaintiff no. 2

is their mother. The defendant no. 2, being the brother of plaintiff

no. 1 and son of plaintiff no. 2, is stated to be residing in USA and

has, therefore, been impleaded as party defendant no. 2 in the

present suit only as a proforma defendant. The plaintiffs in this

suit, claim recovery of Rs. 24,08,000/- against defendant no. 1. The

basis of their claim is a friendly loan of Rs. 14 lakhs given by late

Shri Joginder Singh Dabas (father of plaintiff no. 1 and husband of

plaintiff no. 2) to defendant no. 1 in July, 2003. The defendant no. 1

is alleged to have returned the loan amount of Rs. 14 lakhs to late

Shri Joginder Singh Dabas by issuing a cheque bearing no. 429204

dated 4th April, 2004 drawn on Canara Bank, Air Force Group

Insurance Society, Subroto Park, New Delhi. However, the said

cheque when presented for collection was returned unpaid with the

remarks "insufficient funds" vide Bank Memo dated 25.05.2004.

The certified copy of the bounced cheque and the bank memo have

been placed on record. Late Shri Joginder Singh Dabas who had

given loan of Rs.14 lakhs to defendant no. 1 expired on 14.12.2004,

but during his life time, he had started proceedings against

defendant no. 1 under Section 138 of the Negotiable Instruments

Act, 1880, which proceedings are stated to be pending against him

till date. The defendant no. 1 was duly informed about the

bouncing of the cheque vide notice dated 21.06.2004 but he has

not repaid the loan amount or the interest accrued thereon till the

filing of the suit. After the death of Shri Joginder Singh Dabas, the

plaintiffs being his legal heirs, have filed the present suit for

recovery of Rs. 24,08,000/- under Order XXXVII, CPC against

defendant no. 1. The amount claimed in the suit includes interest

@ 24% per annum on the loan amount of Rs. 14 lakhs up to the

date of filing of the suit.

2. In response to summons for judgment served upon defendant

no. 1, the defendant no. 1 has filed his leave to defend application.

However, after filing the leave to defend application, nobody has

appeared on behalf of defendant no. 1 for the last three

consecutive dates. It appears that the defendant no. 1 is not

interested in prosecuting his leave to defend application for the

reasons best known to him and, therefore, his leave to defend

application is dismissed for non-prosecution.

3. In view of the provisions contained in Order XXXVII Rule 2(3),

Code of Civil Procedure, 1908, the plaintiffs are entitled to a decree

against defendant no. 1 for an amount not exceeding the suit

amount since leave to defend application filed on behalf of

defendant no. 1 has been dismissed. Upon perusal of the plaint and

the documents annexed thereto, I am satisfied that late Shri

Joginder Singh Dabas (father of plaintiff no. 1 and husband of

plaintiff no. 2) had given a loan of Rs. 14 lakhs to defendant no. 1,

which has not been returned by him till the filing of the suit. The

plaintiffs, being the legal heirs of late Shri Joginder Singh Dabas, are

entitled to recover the loan amount of Rs. 14 lakhs from defendant

no. 1. The plaintiffs have claimed interest on the loan amount @

24% per annum, which in my opinion, appears to be exorbitant and

on a higher side. The plaintiffs are awarded interest on the loan

amount of Rs. 14 lakhs @ 12% per annum simple to be reckoned

w.e.f. 01.08.2003 till realisation.

4. In view of the above and having regard to the facts of the

case, a decree of Rs. 14 lakhs with costs and interest @ 12% per

annum on the principal amount of Rs. 14 lakhs w.e.f. 01.08.2003 till

realisation is hereby passed in favour of the plaintiffs and against

defendant no. 1.

5. Decree sheet be prepared.

6. This suit stands disposed of accordingly.

April 08, 2009                             S.N.AGGARWAL
ma                                              [JUDGE]