Delhi High Court
Klj Plasticizers Limited vs Good-Health Agrotech Pvt. Ltd. & ... on 29 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th August, 2019
+ CS(OS) 530/2016 & IA No.10963/2018 (u/O XXXVII R-3(5)
CPC)
KLJ PLASTICIZERS LIMITED ..... Plaintiff
Through: Mr. Rishi Manchanda & Mr.
Arun Kumar, Advs.
Versus
GOOD-HEALTH AGROTECH
PVT. LTD. & ORS. .... Defendants
Through: Mr. Kunal Godhwani, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff has instituted this suit, under Order XXXVII of the
Code of Civil Procedure, 1908 (CPC), for recovery of principal
amount of Rs.4 crores together with pre-suit interest of Rs.2.16 crores
i.e. total Rs.6.16 crores, jointly and severally from defendant no.1
Good-Health Agrotech Pvt. Ltd. and its directors defendant no.2
Kailash Agarwal and defendant no.3 Subhash Chandra Agarwal.
2. It is inter alia the case of the plaintiff, that the plaintiff had
disbursed a loan of Rs.4 crores to the defendants, vide Real Time
Gross Settlement (RTGS) on 22nd April, 2013 in the account of the
defendant no.1, and the defendant no.1, in repayment of the said loan,
had issued a post dated cheque dated 20th August, 2013 in favour of
the plaintiff, but which cheque was returned dishonoured. Hence, this
suit.
3. The suit, under Order XXXVII of the CPC on the basis of a
dishonoured cheque of the defendant no.1, having been instituted also
against defendants no.2 and 3, insofar as contained the relief, also
against defendants no.2 and 3, was beyond the purview of Order
XXXVII of the CPC and ought not to have been entertained under
Order XXXVII. However the Joint Registrar, on 18th October, 2016
without adverting to the said aspect, entertained the suit and issued
summons for appearance.
4. On the defendants entering appearance, summons for judgments
were issued and served and the defendants have filed IA
No.10963/2018 for leave to defend.
5. The counsels have been heard.
6. The counsel for the defendants has urged only two arguments
for grant of leave to defend. Firstly, it is contended that the suit, on
the basis of cheque dated 20th August, 2013 dishonoured on 23rd
August, 2013 could have been filed on or before 23rd August, 2016 but
as per the website of this Court, was filed on 7 th October, 2016, and is
thus barred by time.
7. The counsel for the defendants / applicants, as has become the
norm, has taken the plea of limitation, without inspecting the file. The
plaint, bears a stamp of filing on 11th August, 2016 and of re-filing on
14th September, 2016 and 7th October, 2016. The suit filed on 11th
August, 2016, according to the counsel for the defendants also, is
within time. No merit is thus found in the plea for grant of leave to
defend, of the suit claim being barred by time.
8. The only other argument urged is, that the defendant no.1 has its
registered office at Hyderabad and the defendants no.2 and 3 also are
residents of Hyderabad and this Court does not have territorial
jurisdiction to entertain the suit. Attention is also drawn to page 17 of
Part-IIIA file, being the pro-note dated 22nd April, 2013 at Hyderabad,
executed by the defendant no.2 as under:
"On Demand we promise to pay KLJ Plasticizers Ltd., New Delhi, or order
for value received, the sum of Rupees Four Crores only with interest
thereon from this date at the rate of 18 per cent per annum."
9. I have enquired from the counsel for the defendants, whether
not this Court would have territorial jurisdiction, also on the principle
of debtor must seek the creditor.
10. The counsel for the defendants has no response. He has
however referred to Rashtriya Mahila Kosh Vs. Youth Charitable
Organisation MANU/DE/2984/2005, but the same has no application
to the present case because therein the loan agreement was signed at
Andhra Pradesh and no cause of action was found to have accrued
within the territorial jurisdiction of this Court.
11. In the present case, it is not the plea of the defendant that the
plaintiff has any office at Hyderabad and/or that the agreement was for
repayment of the loan at Hyderabad. The cheque issued in repayment
of the loan is found to have been issued, though on a bank at
Hyderabad but from a multi-city account. The cheque was admittedly
presented for payment, in the account of the plaintiff at Delhi.
12. No merit worth grant of leave to defend, the principles whereof
are governed by IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd.
(2017) 1 SCC 568, is thus found.
13. No other argument has been urged.
14. I have however enquired from the counsel for the plaintiff, that
if the plaintiff desires the decree against defendants no.2 and 3 also,
then the suit cannot be treated as a summary suit and would be treated
as an ordinary suit.
15. The counsel for the plaintiff sought passover to obtain
instructions and on passover states that the plaintiff gives up the claim
against defendants no.2 and 3 and seeks recovery only from defendant
no.1.
16. That brings me to the question of interest. The promissory note
referred to by the counsel for the defendants himself, provides for
repayment of loan of Rs.4 crores with interest thereon at the rate of
18% per annum.
17. The transaction between the parties being a commercial one,
there is no ground for interfering with the agreed rate of interest.
18. IA No.10963/2018 of the defendants is thus dismissed.
19. A decree is passed, in favour of the plaintiff and against the
defendant no.1 Good-Health Agrotech Pvt. Ltd., of recovery of
Rs.6.16 crores with interest pendente lite and future on the principal
amount at the rate of 18% per annum. The plaintiff shall also be
entitled to costs of the suit, with professional fee assessed at
Rs.60,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
AUGUST 29, 2019
„gsr‟
