M/S. Montage Advertising Private ... vs M/S. Shree Giri Raj Kripa ...
2009 Latest Caselaw 488 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No. 1465/2007

%                     Date of Decision: February 11, 2009


# M/s Montage Advertising P. Ltd.                         ..... Plaintiff

!                     Through: Mr. Vinod Trisal, Advocate

                               Versus

$ M/s Shree Giri Raj Kripa Colonisers P. Ltd. & Anr.
                                                        .....Defendant
^                     Through: Nemo


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

S.N.AGGARWAL, J (ORAL)

The plaintiff has filed this suit against the defendants for

recovery of Rs.37,26,501/- including interest up to the date of filing

of the suit. The suit was filed on 25.07.2007.

2 Briefly stated the facts of the case are that the plaintiff

company is engaged in the business of advertising under the name

and style of M/s Montage Advertising Pvt. Ltd. Defendant No. 1 is a

company incorporated under the Companies Act and defendant No.

2 is stated to be its Director. It is stated that defendant No. 1

company through its Director defendant No. 2 approached the

plaintiff company to place advertisement of defendant No. 1

company in various newspapers. The defendants are stated to have

placed order for advertisement and after its approval, the

advertisements were prepared and published by the plaintiff

company in various newspapers i.e. Hindustan Times (Estate) and

Times of India (Property). The plaintiff company raised total 8 bills

upon defendant No. 1 company in respect of the advertisements

published by it for the said company in Hindustan Times (Estate)

and Times of India (Property). The details of these 8 bills are given

in para 6 at pages 3 & 4 of the plaint. The total amount of the bills

raised by the plaintiff company upon defendant No. 1 company is to

the tune of Rs.35,55,343.23 paise. Defendant No. 1 company is

stated to had made part payment of Rs.20 lacs against the

abovementioned bills by means of cheque bearing No. 000376

dated 12.10.2006 drawn on Kotek Mahindra Bank. However, the

said cheque issued by defendant No. 1 company was returned

unpaid with the remarks 'Funds Insufficient'. The plaintiff company

thereafter immediately contacted the defendants and apprised

about the fate of the cheque and consequent thereto, the

defendants issued another cheque bearing No. 000442 for

Rs.35,50,000/- on 22.12.2006 to settle all the 8 bills raised by the

plaintiff company on defendant No. 1 company. However, even this

cheque of Rs.35,50,000/- given by defendant No. 1 company to the

plaintiff company was also bounced when presented for

encashment. Thereafter, defendant No. 1 company paid Rs.4.5 lacs

to the plaintiff by means of two separate demand drafts, one for Rs.

2 lacs and second for Rs.2.5 lacs and gave a cheque of Rs.23 lacs

bearing No. 00572 dated 29.05.2007. However, this cheque of Rs.

23 lacs given by defendant No. 1 to the plaintiff also bounced when

presented for encashment and this time, the said cheque was

returned with the remarks 'Account Closed'. The plaintiff has stated

in the plaint that after adjusting the amount of Rs.4.5 lacs received

by it from defendant No. 1, the plaintiff company is still entitled to

recover Rs.31,05,543/- being the balance amount of the bills

mentioned in Para 6 of the plaint. The plaintiff company is stated to

has sent the legal notice dated 11.07.2008 demanding the said

balance payment from defendant No. 1 company but despite

service of the said legal notice, defendant No. 1 did not pay the said

amount and therefore the plaintiff has filed the present suit seeking

recovery of Rs.37,26,500/- against the defendants which include

interest up to the date of filing of the suit.

3 The defendants were served with the summons of the suit but

none appeared on their behalf and therefore they were proceeded

ex-parte vide order passed by this Court on 06.05.2008.

4 The plaintiff has filed its ex-parte evidence by way of affidavit

of its Director Mr. Karunendra Mathur who has proved 26

documents in his affidavit and the same are Ex. PW-1/1 to

Ex. PW-1/26.

5 I have heard the arguments of Mr. V. Trisal, learned counsel

appearing on behalf of the plaintiff and have also gone through all

the documents tendered by the plaintiff in its ex-parte evidence. On

going through the case file, particularly the documents tendered by

the plaintiff in its ex-parte evidence, it appears to me that the claim

of the plaintiff against the defendants is based upon bounced

cheques. Since the defendants have failed to pay the balance

amount of Rs.31,05,343.23 paise being the amount outstanding

against 8 bills raised by the plaintiff, defendant No. 1 company has

rendered itself liable to suffer a decree for the said amount. The

petitioner has proved the cheques given by defendant No. 1

company which were later on bounced when presented for

encashment and the same are Ex. PW-1/13, Ex. PW-1/16 &

Ex.PW-1/21. The return memos of these cheques received by the

plaintiff company from its banker are Ex. PW-1/14, Ex.PW-1/17 &

Ex.PW-1/22. The legal notice dated 11.07.2007 served by the

plaintiff company upon defendant No. 1 company prior to filing of

this suit is Ex. PW-1/123 and the A.D. card showing service of the

legal notice is Ex. PW-1/24. From a perusal of these documents, it is

evident that an amount of Rs.31,05,343.23 paise was due and

outstanding to the plaintiff company from defendant No. 1 company

as on 30.09.2006. The plaintiff company has claimed interest on the

said amount of Rs.31,05,343.23 paise @ 24% per annum from

01.10.2006 to 31.07.2007 i.e up to the date of filing of this suit.

This Court is of the opinion that the interest @ 24% claimed by the

plaintiff company is exorbitant and on higher side. The interest of

justice will be adequately served by directing recovery in favour of

the plaintiff for Rs.31,05,343.23 paise with interest @ 12% per

annum from 01.10.2006 onwards till realization.

6 One thing more need to be dealt with before parting with this

judgment. The plaintiff has sued defendant No. 2 in his capacity as

a Director of defendant No. 1. This Court is of the opinion that the

Director of a limited company has no personal liability in respect of

debt owned by the company. Hence decree cannot be passed

against defendant No. 2 in his individual capacity. The suit of the

plaintiff against defendant No. 2 is, therefore, dismissed.

7 For the foregoing reasons and having regard to the facts and

circumstances of the case, a decree of Rs.31,05,343.23 paise with

costs and interest @ 12% per annum w.e.f. 01.10.2006 till

realization is hereby passed in favour of the plaintiff and against

defendant No. 1 company. Decree sheet be prepared accordingly.

8    This suit stands disposed of accordingly.




February 11, 2009                       S.N.AGGARWAL
a                                          [JUDGE]