Atul Agarwal vs M/S Ascent Infracon Pvt Ltd
2015 Latest Caselaw 1203 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) 2859/2012

                                                 Decided on 10.02.2015
IN THE MATTER OF :
ATUL AGARWAL                                         ..... Plaintiff
                         Through: Mr. Naveen Chawla, Advocate

                         versus


M/S ASCENT INFRACON PVT LTD                           ..... Defendant
                   Through: None

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The plaintiff has instituted the present summary suit against the

defendant/company praying inter alia for a decree of `49,94,380/-,

alongwith interest payable @24% from the date of institution of the

suit till realisation.

2. The suit was registered on 19.09.2012 and summons were

issued to the defendant in the prescribed format, returnable on

01.03.2013. Repeated efforts were made by the plaintiff to serve the

defendant with the summons in the suit but it remained unserved.

Finally, the plaintiff had filed an application under Order V Rule 20

CPC, for effecting substituted service on the defendant through

publication, which was duly allowed vide order dated 10.10.2014.

Despite the fact that the defendant was served through publication in

the newspaper, "Statesman" published on 19.11.2014, none has

appeared on their behalf. As a result, the defendant is proceeded

against ex parte.

3. Learned counsel for the plaintiff states that as the defendant has

failed to enter appearance in the suit, his client is entitled to a decree

under Order 37, Rule 2(3) of the CPC.

4. As per the averments made in the plaint, the

defendant/company did not have sufficient funds to purchase a

commercial property bearing plot No.62, Gandhi Road, Dehradun,

Uttranchal and it had approached the plaintiff to partly finance/fund

the purchase. At that time, the defendant/company had assured the

plaintiff that they would repay the loan amount on or before

28.08.2010 alongwith interest @12% per annum. The plaintiff had

agreed to advance a sum of `28 lacs to the defendants with an

understanding that the said amount would be repaid on or before

28.08.2010, with interest payable @12% per annum.

5. The said understanding was reduced into writing by the parties

who had executed an Agreement dated 01.04.2009, wherein the

defendant/company had admitted having received a sum of `28 lacs

from the plaintiff. It was also agreed that loan amount would carry

interest of a sum of `6,72,000/-, and the entire amount would be

payable, on or before 28.08.2010. Clause 2 of the Agreement

mentions that two cheques were issued by the defendant/company in

favour of the plaintiff, bearing No.020016 dated 01.04.2009, for a sum

of `5,000/- and No.020017 dated 28.08.2010, for a sum of

`34,67,000/-, both drawn on IDBI Bank, Ocean Complex, P-6, Sector

18, Noida. The defendants had given an assurance to the plaintiff that

both the aforecited cheques would be honoured on presentation, on

the dates mentioned therein.

6. Counsel for the plaintiff states that in terms of Clause 4 of the

Agreement, the defendant/company had agreed that in the event of

any default on its part in honouring the two cheques mentioned above,

they would pay interest to the plaintiff on the loan amount @24% p.a.,

reckoned from 28.08.2010. It is submitted that when the plaintiff had

presented the first cheque dated 01.04.2009 for a sum of `5,000/-, for

encashment, the same was duly encashed but on the second cheque

for `34,67,000/- being presented, it was dishonoured by IDBI Bank,

the defendant/company's banker and in terms of the Memo dated

28.10.2010 the plainitff's banker, HDFC Bank Ltd, New Delhi Branch,

had informed him that the funds in the account of the said company

were insufficient.

7. Aggrieved by the dishonour of the aforesaid cheque, the plaintiff

had issued a legal notice dated 08.11.2010 to the defendant/company

under Section 138 of the Negotiable Instruments Act calling upon it to

pay the amount of the dishonoured cheque along with interest. The

said notice was duly served on the addressees, but it had failed to

elicit any response from the defendant/company or from its directors.

As a result, the plaintiff was compelled to file a complaint case against

the defendant/company and its Directors under Section 138 of the

Negotiable Instruments Act, which is stated to be pending trial before

the Court of the Learned CMJ, Noida. Learned counsel states that

contemporaneously, the plaintiff had instituted the present summary

suit against the defendant/company for recovery of the cheque

amount that was dishonoured, alongwith the agreed rate of interest,

that comes to a sum of `49,94,380/- with interest from the date of

institution of the suit, till realization.

8. As per the averments made in the plaint, the

defendant/company is liable to pay an amount of `34,67,000/- to the

plaintiff, together with interest @ 24% per annum from 28.08.2010,

the date when a cheque for the said amount was issued in favour of

the plaintiff till, 28.08.2012, the date of institution of the present suit.

Learned counsel submits that if the interest component on the

principal amount is calculated at the agreed rate of 24% per annum, it

would come to `15,27,380/- and therefore, the plaintiff is, entitled to a

decree for a sum of `49,94,380/- against the defendant/company,

however, the plaintiff would be agreeable to reduction in the interest

rate from the date of institution of the suit, till realization.

9. As noted above, the suit has remained uncontested by the

defendant/company, and even after being served through alternate

mode, it has failed to enter appearance within the period prescribed

under Order 37 of the CPC. Resultantly, the suit has remained

uncontested.

10. Having regard to the averments made in the plaint and on

perusing the documents placed on record, this Court is of the opinion

that the plaintiff is entitled to a decree against the defendant/company

for a sum of `49,94,380/-. It is further directed that the plaintiff shall

be entitled to pendent lite and future interest on the decretal amount

@12% per annum from the date of the institution of the suit, till

realisation.

11. Ordered accordingly. The suit is decreed in favour of the plaintiff

and against the defendant for a sum of `49,94,380/- together with

pendente lite and future interest @12% per annum, alongwith the

costs of the suit.

12. Decree sheet be drawn up accordingly.

                                               (HIMA KOHLI)
FEBRUARY 10, 2015                                 JUDGE
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