Vikas Bhatia vs Nikhil Chohan
2014 Latest Caselaw 2544 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                               C.S. (OS) No.2806/2011

                                           Decided on : 19th May, 2014

VIKAS BHATIA                                           ...... Plaintiff
                         Through:   Mr. Brijesh Gupta, Advocate.

                           Versus

NIKHIL CHOHAN                                        ...... Defendant
             Through:               Mr. Bharat Bhushan Bhatia, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This is a suit filed by the plaintiff under Order 37 CPC for recovery

of Rs.24 lacs along with future and pendente lite interest @ 18 per cent

per annum.

2. The brief facts of the case are that the defendant approached the

plaintiff, who is a goldsmith by profession, for a friendly loan of Rs.24

lacs and promised to repay the aforesaid amount on or before 20.10.2011.

Consequently, the plaintiff advanced a loan of Rs.24 lacs to the defendant

on different dates, details of which are as under :-

                    Date                  Amount (Rs.)
               15.9.2009                    5,00,000/-
               10.10.2009                   5,00,000/-
               25.10.2009                   3,00,000/-
               20.11.2009                   2,00,000/-
               15.12.2009                   4,00,000/-
               6.1.2010                     5,00,000/-
                                            _________
                                     Total: 24,00,000/-
                                            _________

3. The defendant duly acknowledged and accepted the respective

receipts which are written contract and the instruments duly executed by

the defendant. Despite promise, for one reason or the other, the

defendant failed to return the aforesaid amount and the plaintiff filed the

present suit for recovery.

4. The defendant filed an application under Order 37 Rule 3 (5) read

with Section 151 CPC for leave to defend the suit. Vide order dated

19.7.2013, the said application was allowed subject to the defendant

depositing a sum of Rs.20 lacs with the Registrar General of this court

within eight weeks. Till date, the defendant has not deposited a sum of

Rs.20 lacs despite couple of opportunities having been given. The

defendant has also filed an appeal against the said order before the

Division Bench; however, there is no stay order passed by the appellate

court. The learned counsel has opposed the grant of any further time on

the ground that the defendant was directed to deposit the amount in July

and nearly ten months have elapsed and no amount has been deposited.

5. I have heard the learned counsel for the parties and have gone

through the record.

6. The suit has been filed on the basis of the receipts/

acknowledgments. There are two original receipts/acknowledgments

dated 20.11.2009 and 6.1.2010 placed at page 2 and 4 in part III file

wherein the defendant has accepted that he has taken a loan of Rs.20 lacs

from the plaintiff. But till date, the amount has not been refunded to the

plaintiff. Since the leave to defend granted to the defendant was

conditional and that condition has not been complied with, I feel that the

plaintiff is entitled to the decree straight away. Order 37 Rule 3 (6) (b)

CPC which reads as under :-

"(6) At the hearing of such summons for judgment,-

(a) ............

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that,

on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith."

7. Keeping in view the facts and the provision of law as the defendant

has not deposited a sum of Rs.20 lacs with the Registrar General of this

court as directed, I decree the suit of the plaintiff for a sum of Rs.24 lacs.

Further, the plaintiff is entitled to interest also. He has claimed interest at

the rate of 18 per cent per annum. This is hardly the rate of interest

which the bank pays to the depositor as on date. The plaintiff is at best

entitled to interest akin to the interest payable on an amount which is akin

by the interest payable by the bank. The plaintiff shall be granted an

interest at the rate of 10 per cent per annum. Ordered accordingly.

Decree sheet be drawn.

V.K. SHALI, J.

MAY 19, 2014 'AA'