Nirbhay Trehan vs Vijay Bhardwaj & Anr
2013 Latest Caselaw 292 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 17th January, 2013

+                               CS(OS) 1387/2009

        NIRBHAY TREHAN                                 ..... Plaintiff
                    Through:              Mr. Pawan Madan, Adv.

                       versus

    VIJAY BHARDWAJ & ANR             ..... Defendants
                  Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff has instituted this suit for recovery of Rs.25,25,000/-

from the two defendants and for recovery of an additional sum of

Rs.5,00,000/- from the defendant No.2 ICICI Bank, together with interest

@ 18% per annum, pendente lite and future and costs.

2. Summons of the suit were issued to the two defendants. It is the

case of the plaintiff in the plaint itself that the defendant No.1 at the time

of institution of the suit was in District Prison, Gurgaon being an accused

in FIR No.117/2008 under Section 320 IPC and under Sections 25 and 27

of the Arms Act, 1959 of Police Station Civil Lines, Gurgaon. Though

the order dated 18.03.2011 records that the plaintiff had filed an affidavit

of service of the defendant no.1 in jail but no order proceeding ex parte

against the defendant No.1 was made on subsequent dates. In the

circumstances, vide order dated 23.08.2011 report was called from the

Superintendent of Gurgaon Jail as to whether the summons of the suit had

been delivered to the defendant no.1. A report dated 12.09.2011 was

received from the Deputy Superintendent of District Prison, Gurgaon

confirming that the defendant No.1 was lodged in the said jail and the

summons of the present suit for appearance on 25.08.2010 and thereafter

for 23.02.2012 had been served on the defendant No.1. In view of the

said report, vide order dated 23.02.2012, though no formal order

proceeding ex parte against the defendant No.1 was made but the plaintiff

was asked to lead his evidence. In subsequent orders also, the reference

is made to the ex parte evidence of the plaintiff. In this view of the

matter, the defendant No.1 is treated to have been proceeded against ex

parte on 23.02.2012.

3. As far as the defendant No.2 ICICI Bank is concerned, the counsel

for the plaintiff, as recorded in the order dated 23.02.2012, is not pressing

any relief against the defendant No.2. The counsel for the plaintiff

confirms the said position today also.

4. The plaintiff has filed his affidavit by way of examination-in-chief

which was tendered into ex parte evidence of the plaintiff on 18.12.2012

and closed his ex parte evidence.

5. It is the case of the plaintiff that the plaintiff had approached the

defendant No.1, carrying on business of property in the name and style of

M/s Vijay and Associates in village Gitorni, Mehrauli Gurgaon Road, for

the purpose of acquiring farm land in village Jaunapur, Mehrauli and

since the plaintiff himself is a resident of Jammu, he had, as advised by

the defendant No.1, left a sum of Rs.20,00,000/- with the defendant No.1

for the said purpose. The said sum of Rs.20,00,000/- is stated to have bee

paid by the plaintiff to the defendant No.1 vide four banker's cheques

bearing Nos.101510, 101511, 10512 & 10513 for Rs.5,00,000/- each

issued by the defendant No.2 ICICI Bank in consideration of the monies

drawn from the account of the plaintiff with the said Bank. The plaintiff

in his ex parte evidence has referred to the photographs of the said

banker's cheques as Mark 'A' to 'D'. It is further the case of the plaintiff

that the defendant No.1 was soon thereafter i.e. on 24.03.2008 arrested as

aforesaid. The plaintiff in his ex parte evidence has deposed that being

under the impression that the banker's cheques aforesaid would not have

been encashed by the defendant No.1 till then, the plaintiff had first

sought release of the said cheques from the Court concerned with the FIR

aforesaid against the defendant No.1 but upon learning that the cheques

had already been encahsed, has filed the present suit for recovery of the

said amount of Rs.20,00,000/- with interest @ 18% per annum from

05.03.2008 till the institution of the suit. The plaintiff, in his ex parte

evidence has also proved a Certificate dated 12.06.2008 issued by the

defendant No.2 Bank confirming the issuance by the defendant No.2

Bank of the four banker's cheques in the name of defendant No.1 from

the account of the plaintiff with the said Bank. The said Certificate

proved by the plaintiff is Ex.PW-1/A. The said Certificate has also been

admitted by the defendant No.2 Bank.

6. Needless to state that the aforesaid version of the plaintiff remains

unrebutted.

7. There is no reason to disbelieve the ex parte evidence of the

plaintiff.

8. The suit of the plaintiff against defendant No.1 is thus decreed for

the recovery of the principal amount of Rs.20,00,000/-. However as far

as the claim of the plaintiff for interest for the period prior to the

institution of the suit, pendente lite and future is concerned, considering

the entirety of the facts and particularly when the defendant No.1 is

lodged in jail, it is deemed appropriate to confine the rate of interest to

@10% per annum. The suit for interest is thus decreed at 18% per

annum.

9. The plaintiff shall also be entitled to costs as per Schedule.

10. Decree Sheet be prepared.

RAJIV SAHAI ENDLAW, J JANUARY 17, 2012 'gsr'