Delhi High Court
M/S. G. E. Capital Services India vs Mr. Prabhu. R on 26 March, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26.03.2015
+ CS(OS) 2528/2011
M/s. G. E. Capital Services India ..... Plaintiff
Through: Mr. Gaurav Gaur, Adv.
versus
Mr. Prabhu. R ..... Defendant
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Open Court)
1. This is a suit under Order XXXVII of the Code of Civil Procedure,
1908 (for short 'CPC') for recovery of Rs.26,41,056.31/-. The
plaintiff is stated to have financed Rs.18,77,818 (for short 'loan
amount') to the defendant for purchase of certain medical
equipment(s). For this purpose, the parties entered into an
Equipment Master Security & Loan Agreement (for short
'Agreement') on 25th September, 2007. The defendant had also
executed a promissory note. The defendant is stated to be a
doctor/surgeon based out of Madurai, Tamil Nadu.
CS(OS) 2528 of 2011 Page 1 of 4
2. It is the plaintiff's case that the loan amount was to be repaid in 60
equated monthly installments of Rs. 42,726/-; that the defendant
defaulted in repayment of the loan amount. As on the date of
institution of the suit, the amount due is stated to be
Rs.26,41,056.31/-. In accordance with the terms of the agreement,
the plaintiff claims pendente lite and future interest @ 20% per
annum.
3. Earlier on 30th April 2013, this suit had been decreed ex parte.
However, upon an application made by the defendant, the same was
set aside on 11th February, 2014 and the defendant was directed to
file the appearance with a week thereof. Summons for judgment was
sent to the defendant by speed post and was also served upon the
learned counsel for the defendant in Court on 10.12.2014. The
defendant was also directed to file an application for leave to defend
within the prescribed period. On 23.02.2015, it was noticed that the
defendant had not filed the leave to defend application within the
prescribed period of 10 days and the learned counsel for the plaintiff
had submitted that under these circumstances, the plaintiff was
CS(OS) 2528 of 2011 Page 2 of 4
entitled to a decree straightaway. Accordingly, this matter has been
placed before this Court today.
4. Rule 5 of Order XXXVII of the CPC stipulates that the defendant
may, at any time within ten days from service of summons for
judgment, apply for leave to defend the suit. It is evident from the
records that the summons for judgment was served upon the learned
counsel for the defendant on 10.12.2014. Accordingly, the defendant
should have filed an application for leave to defend within 10 days
therefrom. Having not done so, this Court is of the view that the
plaintiff is entitled to a judgment forthwith as provided under Rule 3
(6) (a) of Order XXXVII, CPC. Furthermore, there is no application
by the defendant under Rule 7, showing sufficient cause for the
delay in applying for leave to defend the suit. In effect, there has
been no rebuttal to the plaintiff's claims. Accordingly, this court
finds no reason to not decree the suit as prayed for.
5. This Court is satisfied that the present suit is maintainable under
Order XXXVII, CPC since the plaintiff seeks to recover a debt
arising out of a written contract; the original documents on the basis
of which the suit is filed are on record; and the suit is not barred by
CS(OS) 2528 of 2011 Page 3 of 4
limitation. The suit is accordingly, decreed in favour of the plaintiff
for recovery of Rs. 26,41,056.31. The plaintiff has claimed pendente
lite and future interest @ 20 % per annum. However, this Court
deems it fit to award pendente lite and future interest @ 9% per
annum.
6. Let the decree sheet be drawn up accordingly.
7. The suit is disposed off in the above terms.
MARCH 26, 2015 NAJMI WAZIRI, J.
vmk
