Sudesh Madhok vs Shilpax Lab. Ltd. And Ors.
2012 Latest Caselaw 830 Del

03.
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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CS(OS) 1375/1999

%                                          Judgment dated 07.02.2012

SUDESH MADHOK                                                ..... Plaintiff
                               Through :   Mr. P.D. Gupta and Mr.Kamal Gupta,
                                           Advs.

                      versus


SHILPAX LAB. LTD. AND ORS.                  CD+                  ..... Defendant
                   Through

         CORAM:
         HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (ORAL)

1. Plaintiff has filed the present suit for recovery of Rs.70,12,054/-.

2. The facts, which have led to the filing of the present suit, as stated in the plaint, are that defendants no.1 and 2 are public limited companies having their registered office at Civil Lines, Delhi. On or about the month of January, 1996, defendant no.1 company approached the plaintiff as it was in urgent need of finances. At the request of defendant no.1, plaintiff advanced a loan of Rs.50.00 lakhs to defendant no.1 by means of a cheque bearing no.315223 drawn on Bank of India. As an acknowledgement of having received the sum of Rs.50.00 lakhs from the plaintiff, defendant no.1 executed and delivered a receipt and with a view to secure the payment a demand promissory note both dated 14.2.1996 was signed in favour of the plaintiff. Defendant no.1 promised to pay on demand after 180 days the aforesaid loan amount along with interest @15%, per

annum. The plaintiff requested for return of the money in May, 1996, however, defendant no.1 requested the plaintiff for further time to repay the loan amount. Defendant no.1 represented to the plaintiff that it was supplying bulk drugs to defendant no.2 on credit and requested the plaintiff that bills for supplies made by defendant no.1 to defendant no.2 be discounted by the plaintiff. The plaintiff acceded to the request of defendant no.1 and discounted two bills of supply bearing invoices no.78 and 79 both dated 11.6.1996 for a total sum of Rs.50,83,500/- drawn on defendant no.2, which were duly accepted by defendant no.2 for payment within 90 days from the date of the bill. Defendant no.2 also agreed and undertook to make the payment of the bills to the plaintiff. It was also agreed that defendant no.1 would pay the interest to the plaintiff @15%, per annum. With a view to secure the payment of the principal amount to the plaintiff, defendant no.2 issued and delivered five cheques bearing no.531601, 531602, 531603, 531604 and 531605 for Rs.10.00 lakhs, each, drawn on Punjab National Bank, Civil Lines, Delhi, in favour of the plaintiff. By way of additional security for the payment of the aforesaid amount defendants also pledged 2.00 lakhs shares of defendant no.2 held by and duly registered in the name of Mr.Mukesh Bhargava along with blank signed transfer deeds with the plaintiff. Defendant no.1 also paid a sum of Rs.4,16,097/- being the interest for the period of 210 days @15% and also issued the certificates for Tax Deduction at Source (TDS) for Rs.27,328/- to the plaintiff.

3. As per the plaint, upon presentation of the aforesaid five cheques, the same were returned by the bankers of the defendant with the remark 'payment stopped' vide cheque returning memos dated 10.3.1998. Despite a legal notice dated 7.9.1998 having been issued by the plaintiff to defendants, defendants have failed to make the payment, which led to

filing of the present suit.

4. Upon service of summons, defendants entered appearance and sought time to file written statement, however, no written statement was filed by them. Defendants were proceeded ex parte by an order dated 4.5.2009. During the pendency of the suit plaintiff, Smt.Sudesh Madhok, died and her legal heirs were brought on record. Ex parte evidence by way of affidavit has been filed by the husband of the plaintiff, who has deposed on the lines of the plaint.

5. Learned counsel for the plaintiff submits that original documents were filed before the Metropolitan Magistrate where the plaintiff had instituted proceedings under Section 138 of Negotiable Instruments Act. Subsequently, certified copies were placed on record and the originals were returned to the plaintiff. After the demise of the plaintiff, legal heirs of the plaintiff were unable to find the original documents, which led to filing of an application under Section 65 of the Evidence Act for leading secondary evidence. The Joint Registrar by an order dated 10.5.2011 allowed the said application and the plaintiff summoned the clerk from the Court of Metropolitan Magistrate to prove the documents.

6. Counsel for the plaintiff submits that by a communication dated 14.2.1996, defendant no.1 requested the plaintiff for grant of loan of Rs.50.00 lakhs and also agreed to pay interest @15%, per annum. The communication dated 14.2.1996 has been exhibited as PW-1/1; Promissory Note has been exhibited as PW-1/2; the receipt evidencing payment of Rs.50.00 lakhs has been exhibited as PW-1/3; Promissory Note of May, 1996, has been exhibited as Ex.PW-1/4; Promissory Note of 1.7.1996 has been exhibited as Ex.PW-1/5. Plaintiff has also exhibited five cheques duly returned by the bankers of the defendant as Ex.PW-1/6, Ex.PW-1/7, Ex.PW-1/8, Ex.PW-1/9 and Ex.PW-1/10. The

communication dated 1.7.1996, addressed by defendant no.1 to the plaintiff, has been exhibited as Ex.PW-1/11. The communication dated 28.8.1997, addressed by plaintiff to defendant no.2, has been exhibited as Ex.PW-1/12. Plaintiff has also exhibited the return memos of Punjab National Bank as Ex.PW-1/13 and Ex.PW-1/14, respectively. Legal notice issued by plaintiff to defendants has been exhibited as Ex.PW-1/15.

7. I have heard counsel for the plaintiff, perused the documents and the evidence by way of affidavit of PW-1, who is the husband of the deceased plaintiff, which has gone unrebutted. Documents placed on record clearly establish that a sum of Rs.50.00 lakhs was advanced by plaintiff to defendant no.1. It has also been established that for the repayment of the loan amount, after the bills were discounted, defendant no.2 had issued five cheques in the sum of Rs.10.00 lakhs, each, in favour of the plaintiff, however, the said cheques were duly returned on account of the payments stopped.

8. Having regard to the documents placed on record and taking into consideration that the evidence of PW-1 has gone unrebutted, present suit is decreed in the sum of Rs.70,12,054/- together with pendente lite and future interest @8%, per annum, from the date of decree till the date of realization against the defendants. Let decree sheet be drawn up accordingly.

G.S.SISTANI, J FEBRUARY 07, 2012 msr