Delhi High Court
M/S Metcalfe Properties Pvt. Ltd. vs M/S Whiterock Builders & ... on 18 May, 2010
Author: S.Ravindra Bhat
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: 18.05.2010
+ CS (OS) 1470/2007
M/S METCALFE PROPERTIES PVT. LTD. ..... Plaintiff
Through: Ms. Monika Kapoor, Advocate.
versus
M/S WHITEROCK BUILDERS & COLONIZERS PVT. LTD. ..... Defendant
Through: None.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1.
Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
% The plaintiff sues the defendant for a money decree in the sum of Rs. 3,27,18,191/- with
24% interest per annum from 28.03.2005. Summons in this case had been issued on 14.08.2007.
The defendant was served despite which it chooses not to enter appearance and contest the
proceedings. The defendant was accordingly set down ex parte.
2. The plaintiff contends to being Private Limited Company incorporated under the
Companies Act, engaged in the business of developing property as well as buying and selling
them. It is contended that the defendant is also a private limited company.
CS (OS) 1470/2007 Page 1
3. The plaintiff submits that during the period 28.03.2005 to 24.05.2005 it made payments
to the tune of Rs. 2,15,000,00/- (Rs. Two crores fifteen lakhs) to the defendant. The details of
such payments, made through the cheques, drawn on the Canara Bank and ICICI Bank are
indicated in a tabular form in paragraph-4 of the Suit. The same is extracted below: -
Sl. No. Date Cheque No. Bank Name Amount
1 28.03.2005 425960 Canara Bank 20,00,000
2 28.03.2005 678613 ICICI Bank 10,00,000
3 28.03.2005 678615 ICICI Bank 5,00,000
4 28.03.2005 678612 ICICI Bank 10,00,000
5 07.04.2005 084251 ICICI Bank 25,00,000
6 08.04.2005 084255 ICICI Bank 25,00,000
7 08.04.2005 084254 ICICI Bank 30,00,000
8 15.04.2005 869554 ICICI Bank 30,00,000
9 16.05.2005 084253 ICICI Bank 25,00,000
10 24.05.2005 869586 ICICI Bank 35,00,000
4. It is submitted that the payments through the said cheques were given to the defendant
based upon the latter's assurances and representations of its Directors that they would be treated
as booking and investment in their (the defendant's) forthcoming real estate projects. It is stated
that the defendant agreed to pay 24% interest per annum on the said amounts. The plaintiff
contends that despite repeated demands and calls for return of the money, the defendant did not
comply, and defaulted in doing so.
5. The plaintiff states that the defendant in discharge of part of its liability had issued two
CS (OS) 1470/2007 Page 2
cheques of Rs. 25 Lakhs each on 10.12.2006 and 15.12.2006. However, when the said cheques
presented for encashment, they were received unpaid with the banker's remarks "funds
insufficient". The plaintiff submits to having contacted the defendant repeatedly for payment of
those amounts but to no avail. It relies upon legal notice dated 24.5.2007 and 28.5.2007 (Ex.
PW-1/5 and PW-1/9). The plaintiff submits to having preferred a complaint before the
Metropolitan Magistrate, Delhi alleging commission of offences. According to the plaintiff, the
cause of action arose when the first payment was made to the defendant on 28.03.2005 and that it
arose on subsequent dates including the two days when the legal notices were issued.
6. In support of the suit, the plaintiff has relied upon the deposition of Mr. Suresh Poddar
who tendered affidavit evidence as Ex.PW-1/A/A. The said witness also exhibited the several
documents relied upon. The plaintiff relies upon Ex.PW-1/4A to 4F which are separate
notices/advise by the ICICI Bank Ltd. confirming that a total of Rs.2,15,000,00/- was debited to
its account towards cheques given to the defendant M/s Whiterock Builders & Colonizers Pvt.
Ltd. The plaintiff also relies upon Ex.PW-1/4G, its statement of account maintained by the
Canara Bank which reveals that a cheque was issued to M/s Whiterock Builders & Colonizers
Pvt. Ltd. and debited by the latter on 30.03.2005. Similarly, two other documents Ex.PW-1/4H
and 4I issued by the ICICI Bank reveal that a sum of Rs.25 Lakhs was debited from its (the
plaintiff's) accounts.
7. The legal notices issued to the defendants have been exhibited as PW-1/5 and PW-1/9. In
support of the contention that these notices were duly dispatched, the plaintiff relies upon the
registered AD receipts which are marked as Ex.PW-1/6, 1/7A, 1/7B, 1/7C, 1/7D and 1/8.
Similarly, the legal notice issued to the defendant on 28.5.2007 has been produced as Ex.PW-
1/9. In the deposition, PW-1 states in paragraph-5 that: -
CS (OS) 1470/2007 Page 3
That the deponent states that the payment of the above mentioned amount
of Rs.2,15,00,000/- (Rupees Two crores fifteen lacs only) was made to the
defendant company through its Director, Shri Sukhjinder Singh upon the
basis of assurances and representations of Shri Gurjeet Singh and Shri
Hardev Singh, directors of the defendant company that the above said
amount shall be treated as a booking/investment amount in their
forthcoming real estate project would be allotted to the plaintiff at the
basic cost price within a period of one year. However, even after
passage of a period of one year, no land was allotted to the plaintiff by
the defendant."
8. On a consideration of the material on record, the Court is of the opinion that the plaintiff
has established that it had paid a sum of Rs. 2,15,000,00/- to the defendant through various
cheques which were debited from its accounts. Although, there is no documentary evidence in
proof of the assertion that the amount was to be treated as booking or investment amount and the
details as to the real estate project are also not forthcoming, yet the plaintiff's authorized Director
has deposed that the sum was to be paid as consideration as an investment or as a booking in the
real estate project of the defendant. The said defendant was also asked to repay the amount
through two legal notices which have been exhibited on the record of this Court in the present
proceedings. In these circumstances, the plaintiff, in the Court's considered view, has
established entitlement for a decree for a sum of Rs.2,15,000,00/-.
9. So far as the interest @ 24% per annum is concerned, aside from the deposition of the
plaintiff through its Director and the averment in the Suit, the Court finds no documentary or any
other material in support of the claim. While the plaintiff's entitlement to the amount may stand
established, in the absence of any objective material to say that the amount was towards some
commercial consideration and that the parties had agreed upon any rate of interest much less
24%, the grant of such interest would not be justified. At the most, the plaintiff would be
entitled to reasonable interest.
CS (OS) 1470/2007 Page 4
10. In view of the above conclusions, the Suit is decreed for the sum of Rs.2,15,000,00/- with
interest @ 8% per annum pendent lite and future interest; the suit is decreed with costs in these
terms; counsel fee is quantified @ Rs.55,000/-.
S. RAVINDRA BHAT
(JUDGE)
MAY 18, 2010
/vd/
CS (OS) 1470/2007 Page 5
