Mr Shubh Gautam vs Anjani Technoplast Limited & ...
2018 Latest Caselaw 284 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 66/2016 & I.A. 12147/2016

       MR SHUBH GAUTAM                            ..... Plaintiff
                   Through: Mr. Sagar Chaturvedi, Advocate.

                          versus

       ANJANI TECHNOPLAST LIMITED & OTHERS ..... Defendants
                    Through: Mr. Sushil K. Tekriwal, Advocate.



%                                   Date of Decision: 11th January, 2018.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

                       JUDGMENT

MANMOHAN, J: (Oral)

1. Present summary suit has been filed under Order XXXVII of the Code of Civil Procedure, 1908, for recovery of Rs.4,38,00,617/- along with pendente lite and future interest @24% per annum till the date of full realisation of the entire amount.

2. It has been averred in the present plaint that under the Loan Agreement dated 24th February, 2010, defendants had borrowed Rs.2,50,00,000/- for a period of two months. Defendants No.2 and 3 are stated to have executed Deed of Guarantee to secure loan.

3. The repayment cheques issued by the defendants admittedly were

dishonoured by the bank with the remarks 'funds insufficient'.

4. In a proceeding under Sections 138, 141 and 142 of the Negotiable Instruments Act, the defendants proposed a settlement under which they offered to pay Rs.3,22,02,660/- along with pendente lite and future interest @24% per annum till the date of full realisation of the entire amount. During the pendency of said proceeding, the parties duly executed a Compromise Deed/Contract dated 31st August, 2013 wherein the defendants undertook to pay Rs.3,22,02,660/- and a post-dated cheque for the said amount was handed over.

5. However, the aforesaid cheque of Rs.3,22,02,660/- was also dishonoured with the remarks 'funds insufficient'.

6. Since the defendants did not pay any amount thereafter, the plaintiff filed the present summary suit for recovery of Rs.3,22,02,660/- along with admitted interest @24% per annum totalling to Rs.4,38,00,617/- under Order XXXVII CPC.

7. Though learned counsel for the defendants states that he has filed the leave to defend application, yet till date, no such application is on record.

8. In fact, before the learned Predecessor of this Court, another Compromise Deed dated 23rd December, 2016 executed between the parties was placed on record wherein the defendants undertook to pay Rs.2,38,61,907 by way of two post-dated cheques dated 31st December, 2017. The relevant terms of the Compromise Deed dated 23rd December, 2016 is reproduced hereinbelow:-

"10. Terms of Settlement:

10.1 It is agreed that the defendants having admitted their liability jointly and severally in the present suit for entire amount as prayed but for the purpose of this settlement they have agreed

to pay to the plaintiff a sum of Rs.2,38,61,907/- (Rupees Two Crores Thirty Eight Lakhs Only) as full and final settlement amount against all claims of the plaintiff in this suit; whereas the plaintiff has also agreed and consented to accept aforesaid full and final settlement amount of Rs.2,38,61,907/- (Rupees Two Crores Thirty Eight Lakhs Sixty One Thousand Nine Hundred Seven Only) against his all claims which he raised in the present suit but subject to encashment of two cheques mentioned hereunder and as will be given by the defendants to the plaintiff in furtherance of this settlement; if said cheques will return unpaid by any reason whatsoever, then full amount of the suit as prayed in the plaint, shall be decreed against all the defendants jointly and severally as admitted by the all defendants in earlier settlement/compromise dt. 31.08.2013.

10.2 It is further agreed that the defendants will pay aforesaid settlement amount of Rs.2,38,61,907/- (Rupees Two Crores Thirty Eight Lakhs Sixty One thousand Nine Hundred Seven Only) by way of following cheques as under:-

1. Cheque No.000130 for Rs.1,00,00,000/- (Rs. One Crore Only); dated 31st Dec. 2017.

2.Cheque No.000132 for Rs.1,38,61,907/- (Rs. One Crore thirty eight lacs sixty one thousand nine hundred seven Only); dated 31st Dec. 2017.

10.3 It is further agreed and undertaken by the all defendants that aforesaid cheques shall be honoured on their due dates on presentation; failing which it will be presumed and proved that defendants have not good intention to honour the cheques as was done in past.

10.4 It is further agreed by the defendants that they shall be liable jointly and severally for the entire amount of plaint as prayed for; in case aforesaid cheques will be returned unpaid; and also accordingly a decree will be drawn against all the defendants jointly and severally by this Hon'ble Court on the basis of Original Compromise dt. 31.08.2013 as prayed in this

suit against all the defendants jointly and severally."

(emphasis supplied)

9. Keeping in view the aforesaid terms of Settlement, the learned Predecessor of this Court adjourned the matter for nearly one year.

10. However, admittedly, the cheques issued under the Compromise Deed/Settlement Agreement dated 23rd December, 2016 have once again been dishonoured by the bank on the ground of 'funds insufficient'.

11. Though the learned counsel for defendants has tried to argue various issues like jurisdiction and the plaintiff being a money lender, yet this court is of the view that such pleas cannot be entertained as no leave to defend has been placed on record till date.

12. Further, in view of the Compromise Deed/Settlement Agreement which provides the consequence for default of repayment, this court is of the view that the suit has to be decreed in accordance with the prayer clause and the default clause in the Compromise Deed/Settlement Agreement.

13. Accordingly, the present suit is decreed against the defendants jointly and severally for a sum of Rs.4,38,00617/- along with interest @24% per annum from 01st February, 2016 (date of filing of suit) along with pendente lite and future interest till the date of actual payment of the full amount after deducting payment of Rs.25 lacs paid by the defendants to the plaintiff on 06th January, 2018.

14. Since the defendants have not honoured their commitment despite Compromise Agreements being executed before various judicial forums, this Court is of the view that the defendants need to be saddled with exemplary costs of Rs.5 lacs, which should be paid to the plaintiff. Ordered

accordingly. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J JANUARY 11, 2018 js