Geeta Jairath vs Amit Kukreja And Ors.
2014 Latest Caselaw 6480 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Pronounced on: 04th December, 2014

+        CS (OS) NO. 2162/ 2013

         GEETA JAIRATH                                                   .... Plaintiff

                            Through:     Mr. Imran Ali, Advocate

                                        versus

         AMIT KUKREJA AND ORS.                                       .... Defendants

                            Through:     Ex-parte

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

1.

This is a suit for recovery of ₹ 24,92,000/- with pendente lite and future

interest @ 18% per annum.

2. As per the case of the Plaintiff, Defendant no. 1 had approached the

Plaintiff along with his brother (Defendant no. 2) and mother (Defendant

no. 3) to seek some assistance for matrimonial alliance of Defendant no.

1. The Plaintiff was running a social consultancy for matrimonial

alliances from her office at B-6, SF, Shivalik Enclave, New Delhi.

3. During the course of discussions, the Defendants became aware of the

good financial position of the Plaintiff, therefore, the Defendants invited

the Plaintiff to visit their office at Malviya Nagar. Defendants no. 1 and 2

also allured the Plaintiff to lend them some money as the Defendants

were in the process of opening a restaurant chain by the name of

'ALMBROOK' and the first such restaurant was to be opened in Malviya

Nagar. The Plaintiff granted them a loan of ₹ 13 lacs, details whereof

have been mentioned in para 10 of the plaint. To secure the aforesaid

amount, Defendant no. 1 issued a cheque dated 21.12.2011 for an amount

of ₹ 13 lacs in the name of the Plaintiff with a request that the same be

deposited and encashed, if Defendant no. 1 fails to make the repayment of

loan within a period of six months. In May, 2012, the Plaintiff deposited

the said cheque which was returned back unpaid with reason 'Funds

Insufficient'.

4. It is the case of the Plaintiff that Defendant no. 1 had been assuring the

Plaintiff of payment of principal as well as good interest, but when the

Plaintiff repeated her demands for return of the amount lent and also sent

SMSs, Defendant no. 1 declined to make the payment forcing the

Plaintiff to file this suit.

5. By an order dated 14.03.2014, the Defendants were ordered to be

proceeded ex-parte.

6. In ex-parte evidence, the Plaintiff has filed her own Affidavit Ex. PW-1/

A, wherein she has corroborated the averments made in the plaint. She

also proved the documents Ex. PW-1/ 1 to Ex. PW-1/ 11 which includes

the copy of the cheque (Ex. PW-1/ 2) issued by Defendant no. 1 which

was dishonoured on presentation and Ex. PW-1/ 3 which is the text of the

messages received by the Plaintiff from Defendant no. 1. A criminal

complaint dated 06.06.2012 regarding cheating was also made by the

Plaintiff against the Defendants.

7. Since the Defendants were ordered to be proceeded ex-parte, the

testimony of the Plaintiff and the documentary evidence produced by her

has remained unchallenged and unrebutted.

8. On the basis of the evidence adduced, it may be difficult to fasten liability

for payment of principal amount of ₹ 13 lacs or interest thereon on

Defendants no. 2 and 3. The cheques were issued in the name of

Defendant no. 1 only. Post dated cheque of ₹ 13 lacs was also issued by

Defendant no. 1 only in favour of the Plaintiff. Thus, the Plaintiff would

be entitled to recover the amount of ₹ 13 lacs as advanced by her to

Defendant no. 1 from Defendant no. 1 only.

9. The vital question for consideration is as to the rate of interest to which

the Plaintiff is entitled.

10. The Plaintiff has deposed that the Defendants had agreed to pay interest

@ 3% per month. However, there is no documentary evidence with

regard to agreement to pay interest @ 3% per month, except that a legal

notice dated 15.06.2012 Ex. PW-1/ 7 was not refuted by Defendant no. 1.

The claim of interest @ 3% per month appears to be unconscionable. I

am therefore, inclined to award interest @ 12% per annum from the date

of grant of loan (on ₹ 50,000/- w.e.f. 19.04.2011; on ₹ 1,00,000/- w.e.f.

28.04.2011; on ₹ 3,00,000/- w.e.f. 30.04.2011; on ₹ 70,000/- w.e.f.

28.06.2011 and on ₹ 7,80,000/- w.e.f. 28.04.2011) till the date of filing of

the suit.

11. The Plaintiff would be further entitled to interest @ 9% per annum from

the date of filing of the suit till the date of judgment and at the same rate

from the date of judgment till the realisation of the amount.

12. The suit is decreed in above terms. Decree sheet be prepared accordingly.

13. Pending applications, if any, also stand disposed of.

(G.P. MITTAL) JUDGE

DECEMBER 04, 2014 vk