Arjun Kohli vs Vishal Prajapati
2012 Latest Caselaw 5934 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Date of Decision : 03.10.2012

+      CS(OS) No.1003/2011

ARJUN KOHLI                                                        ..... Plaintiff
                          Through: Mr. S.C.Singhal, Adv.

                          versus
VISHAL PRAJAPATI                                                    ..... Defendant
                          Through:     None.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

This is a suit filed under Order XXXVII of the Code of Civil Procedure for

recovery of Rs.4 crores. The case of the plaintiff is that the defendant had opened a

mutual current account with it and had been purchasing goods on credit and

making payment on account. The defendant confirmed the statement of the

account for the period 01.04.2008 to 31.03.2010, thereby acknowledging a sum of

Rs.3,78,32,551/-. The defendant issued four post-dated cheques of Rs.1 crore each

to the plaintiff towards discharge of his outstanding liability. These cheques, when

presented to the bank were dishonoured for want of „insufficient funds". The

plaintiff also sent notice to the defendant but there was no response to the notice.

The plaintiff has accordingly claimed Rs.4 crore being the amount of the cheques

issued to him by the defendant. The case of the plaintiff is that these cheques

represent Rs.3,78,32,551/- as principal sum of Rs.21,67,449/- as interest.

2. The summons in prescribed form was served upon the defendant by

publication in "The Statesman" on 6th September, 2012 as also in the newspaper

"Amar Ujala" on the same date. No appearance has been filed by the defendant

despite service, though the statutory time fixed for this purpose has already

expired. Order 37 Rule 3 of the Code of Civil Procedure to the extent it is relevant

provides that the defendant shall not defend the suit referred to in sub-rule(1) of the

said rule unless he enters an appearance and in default of his entering an

appearance, the allegations in the plaint shall be deemed to be admitted and the

plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned

in the summons, together with interest at the rate specified, if any, upto the date of

the decree and such sum for costs as may be determined by the court from time to

time by rules made in that behalf. Rule 3 of Order 37(1) CPC provides that the

appearance has to be entered by the defendant within ten days from the receipt of

the summon either in person or through pleader and in either case the defendant is

also required to file the address for service of notices on him. Sub-Rule(3) Rule 3

provides that on the date of entering the appearance, notice of such appearance

shall be given by the defendant to the plaintiff‟s pleader, or if the plaintiff sues in

person, to the plaintiff himself either by notice delivered or sent by a pre-paid letter

directed to the address of the plaintiff‟s pleader or of the plaintiff, as the case may

be.

3. In the present case, the time for entering appearance expired on

16th September, 2012. Mr. Singhal, who appears for the plaintiff, states that neither

he nor the plaintiff has received any notice of appearance from the defendant. The

record also does not show any appearance having been filed by the defendant. No

vakalatnama or address form on behalf of the defendant is on record. Thus, the

defendant has failed to enter appearance within the statutory period. The

averments made in the plaint are, therefore, deemed to be admitted by the

defendant and the plaintiff is entitled to judgment forthwith.

4. The plaintiff has placed on record certified copies of cheques, the details of

which are as follows:

Sr. No.        Cheque No.          Dates             Amount               Drawn on

      1.         847151         01.06.2010         1,00,000,00/-       Indus Land Bank

                                                 (One Crore only)

      2.         847101         30.06.2010         1,00,000,00/-       Indus Land Bank

                                                 (One Crore only)

      3.         847102         30.06.2010         1,00,000,00/-       Indus Land Bank

                                                 (One Crore only)

      4.         847152         17.02.2011         1,00,000,00/-       Indus Land Bank

                                                 (One Crore only)

5. Mr. Singhal states that original cheques have been filed under Section 138 of

Negotiable Instruments Act. The plaintiff has also filed the bank deposit slip

whereby these cheques were deposited in the bank. The plaintiff has also placed on

record the copy of the legal notice dated 13 th July, 2010 and 18th June, 2010 sent to

the defendant.

6. For the reasons stated hereinabove, a decree for recovery of

Rs.4 crore with cost and pendente lite and future interest at the rate of 12% per

annum is hereby passed in favour of the plaintiff and against the defendant. Decree

sheet be prepared accordingly.

V.K. JAIN, J

OCTOBER 03, 2012 'sn'