Ms. Anupam Gupta vs Mr. Manish Aggarwal & Ors.
2009 Latest Caselaw 3378 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No.2387/2009, IA No.2388/2009 & IA No.2751/2009
           In CS (OS) No.344/2009

                                   Reserved on: 29th May, 2009

%                                  Decided on:     26th August , 2009

Ms. Anupam Gupta                                       ...Plaintiff
                       Through : Mr. Anil Kumar Gupta, Adv. with
                                 Mr. Vineet Jain, Adv. with plaintiff in
                                 person

                       Versus

Mr. Manish Aggarwal & Ors.                       ....Defendants
                   Through : Mr. Vivek Chib, Adv. with
                             Mr. Vibhore K. Singh, Adv. for
                             Defendants No.2-5
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

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

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A No. 2387/2009 under

Order XXXIX Rules 1 and 2 read with section 151 of the CPC, I.A No.

2388/2009 under Order XXXVIII Rule 5 read with section 151 of the

CPC and I.A No 2751/2009 under Order XXVI Rule 9 read with Order

XXXIX Rule 7 and section 151 of the CPC. All three applications have

been filed by the plaintiff in the present case.

2. The brief facts of the case are that defendant no. 1 along with

defendant nos. 2 to 5 approached the plaintiff in January, 2008 for short

term funds to be arranged as loans of different amounts for some urgent

business purpose of defendant no. 1, totaling in all a sum of Rs.

17,95,000/-. Thereafter, the plaintiff was convinced that defendant no. 1

would return her money with interest at the decided rate of 2% p.m. as

his business would be successful and also as defendant nos. 2 to 5 stood

as guarantors on behalf of defendant no. 1.

3. It is not disputed that the defendant no. 1 issued two post

dated cheques being cheque nos. 886852 and 886940 dated May 20,

2008 and June 11, 2008 for Rs. 8,50,000/- and Rs. 9,45,000/-

respectively. Both cheques were drawn on ICICI Bank Ltd., Chennai,

Mount Road Branch, Karumuttu Nilayam, New No. 192, Anna Salai,

Chennai- 600 002. It was also agreed between the parties that the said

defendant would pay the interest amount borne by the plaintiff in

arranging the said loan.

4. It is further not disputed that despite requests of repayment by

the plaintiff so that she could further return the loan amount and despite

the fact that a period of six months had been decided for such

repayment, the said defendant did not pay back the loan amount. Further,

when the cheques issued by defendant no. 1 were presented for payment,

they were returned as dishonoured by the defendant no. 1's bankers at

RPC, E-4, Jhandewalan Extension, New Delhi Branch vide memos dated

May 26, 2008 and June 14, 2008 due to insufficient funds.

5. The plaintiff then sent a notice dated June 23, 2008 to the

defendant no. 1 demanding that he make the payment against the above

two dishonoured cheques. However, notices sent at both the addresses of

the defendant no. 1 were returned as unclaimed etc as the said defendant

is allegedly attempting to evade the service of the same on him. Plaintiff

submits that the defendant should be considered served with the notice

on June 25, 2008 as contemplated in Section 27 of the General Clauses

Act.

6. Aggrieved by the behavior of defendant no. 1, the plaintiff

filed a complaint under Section 138 of the Negotiable Instruments Act,

1881 and the same is pending disposal before the learned MM's Court,

Delhi.

7. The plaintiff contends that the defendant is also liable to pay

interest @ 24% p.a on the principal amount of Rs. 17,95,000/- which

comes to a sum of Rs. 4,30,800/-, thereby making a total of Rs.

22,25,800/- payable to the plaintiff. However, as the defendant no. 1 did

not appear in any proceedings, the learned court had to issue bailable

warrants against him. The plaintiff further submits that there has been a

Public Notice by the other defendants in order to evade payment of the

loan to the effect that defendant no. 1 has been missing since April 8,

2008.

8. The plaintiff submits that defendant Nos.2 to 5 are now trying

to take away the goods lying in defendant no. 1's tenanted shop and have

even taken away the name board thereof. The plaintiff apprehends that

the said defendants are attempting to remove goods worth more than Rs.

10 lac and also to surrender the tenancy rights of the said shop at a huge

premium. The plaintiff has thus approached this court for a decree of

permanent injunction restraining the defendants from creating any third

party interest in property no. 2723, Churiwalan, Bazar Sita Ram, Delhi -

110006 and from removing any goods or articles lying in shop no. M-3

and 10-A, Central Market, Vasant Kunj, New Delhi - 110070 and from

surrendering the tenancy rights as regards the same to anyone. The

plaintiff has also prayed for a decree of recovery of Rs. 22,25,800/-

along with pendent lite and future interest @ 2% p.m. from the date of

filing of the suit till realisation.

9. Defendant nos. 2 to 5, who are the family of defendant no. 1,

have submitted in their reply that they have been arrayed as parties in the

present suit only with the intention of harassment and without any cause

of action being shown against them. The said defendants have also

submitted that the plaintiff has filed this suit only to illegally take over

the tenancy rights of the answering defendants and that the entire case of

the plaintiff is based on forged and fabricated documents. As per the

answering defendants, defendant no. 1 went missing on March 5, 2008

and came back on March 11, 2008 whereafter he again went missing on

April 8, 2008. Thereafter, the answering defendants filed a complaint in

the nearby police station as regards the missing defendant no. 1 and still

have no idea as to his whereabouts.

10. The answering defendants submit that they were in no

manner involved in any alleged financial transaction between the

plaintiff and defendant no. 1. As far as the answering defendants know,

no such transaction has ever taken place. Defendant nos. 2 to 5 deny that

they have ever stood as guarantors for defendant no. 1 in front of the

plaintiff.

11. The plaintiff filed I.A No. 2387/2008 for restraining the

defendants from removing any goods lying in shops no. M- 3 and 10-A,

Central Market, Vasant Kunj, New Delhi - 110070, from surrendering

the tenancy rights in the above mentioned shops and from creating any

third party rights in property no. 2723, Churiwalan, Bazar Sita Ram,

Delhi - 110006. By order dated February 18, 2009 passed by this court,

an ad interim injunction was granted in the said application restraining

the defendants from removing any goods from the two shops mentioned

above.

12. The plaintiff filed I.A No. 2751/2009 praying that this court

appoint a local commissioner in order to take an inventory of the goods

lying in the two shops of defendant no. 1. This court passed an order on

February 27, 2009 whereby a Local Commissioner Mr. Sanjay Dua,

Advocate was appointed to visit the said shop premises of defendant no.

1 to make an inventory of all the goods therein. The Local

Commissioner submitted his report on March 3, 2009.

13. The plaintiff also filed I.A No. 2388/2009 submitting therein

that defendant no. 1 is absconding and the other defendants, in collusion

with defendant no. 1, are trying to dispose of the goods lying in the

shops M-3 and 10A, Central Market, Vasant Kunj, New Delhi - 110070

and to surrender the tenancy rights thereof as well. In view of the loan

amount to be repaid to the plaintiff, the plaintiff submits that the

defendants should either furnish security ensuring the repayment of loan

or the properties of the defendants should be placed at this court's

disposal so that in any eventuality, the grievance of the plaintiff is not

left without remedy.

14. I have perused the submissions of both the parties. The

plaintiff has submitted various bank statements which show large cash

withdrawals, as well as the promissory note executed by defendant no. 1

on January 6, 2008 and a statement dated March 20, 2008 given in

writing by defendant no. 1 wherein he has admitted taking loans for

expanding his business while submitting that he has been unable to do

the same and is neck deep in debt now.

15. During the hearing of the interim application, the defendants

No.2 to 5 were agreeable not to dispose of the properties against the

interim orders issued till the disposal of the suit as well as not to create

any third party interest. A suggestion was given by them to pay the

amount in monthly installment against the liability of defendant No.1.

However, counsel for the plaintiff is not agreeable to any of the

suggestions made by the defendants and has argued that the defendants

should be restrained from removing any goods and articles lying in the

shop No.M-3 and M-10-A, Central Market, Vasant Kunj, New Delhi as

per the inventory made by the Local Commissioner till the disposal of

the suit.

16. Considering the overall circumstances of the matter, it appears

that at this stage the suggestion given by the defendants are quite reasonable

while considering the facts that (i) the present suit has been filed by the

plaintiff for recovery of money and (ii) it is a matter of fact that even though

the defendant No.1, who has actually taken the loan from the plaintiff is not

available, the defendant Nos.2 to 5 are still ready to suffer the injunction as

suggested by them. I feel that in case the defendants are directed not to remove

and sell the goods and articles lying in the said shop, no purpose would be

served because under those circumstances, the goods would become outdated

as some of the products are in the nature of cosmetics etc.

17. In view of the above, I am of the considered view that the ex-

parte interim order dated 18th February, 2009 is modified to the extent that

during the pendency of the suit the defendants are restrained from surrendering

the tenancy rights of the said shop Nos. M-3 and M-10-A, Central Market,

Vasant Kuni, New Delhi and from delivering the possession thereof to the

owner or to any other third party. The defendants are also restrained not to

create third party interest in property No.2723, Choori Walan, Bazar Sita Ram,

Delhi-1100 06 during the pendency of the suit. All the pending applications

are disposed of accordingly.

CS (OS) No.344/2009

List the matter before the Court on 5th October, 2009.

MANMOHAN SINGH, J AUGUST 26, 2009 SD