Madras High Court
Mr.Yogesh Chand Baghmar vs M/S. Royal Medical Trust on 19 September, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No. 222 of 2021
And
A.No. 2354 of 2021
1. Mr.Yogesh Chand Baghmar
2. Mrs. Nanda Baghmar ...Plaintiffs
Vs.
1. M/s. Royal Medical Trust
Rep. by its Trustee
Dr.P.A.Nazar
S/o. Late Mohammed Haji
Kerala Medical College & Hospital
Mangode
Cherupulassery
Palakkad District,
Kerala – 679 503.
2. Dr.P.A.Nazar
3. Mr.Ramanath Aboobacker Jaleel
4. Mr.Changaran Chola Aydu
5. Mr.Urniampulakel Hamsa
6. Mr.Abdul Razack Moideen
https://www.mhc.tn.gov.in/judis
2
7. Mr. U.K.Kunjammu
8. Mr. Hameed Pandarathil ...Defendants
Prayer : Petition filed under Order VII Rule 1 CPC read with Order IV Rule
1 of OS Rules, to pass a Judgment and Decree in favour of the plaintiffs:-
a) to direct the defendants to pay a sum of Rs.1,08,48,000/- jointly and
severally to the plaintiffs, out of which Rs.48,00,000/- being the principal
amount and the interest accrued at the rate of 12% on the principal amount
from the period commencing from 01.06.2016 to 31.01.2021 being a period
of 56 months, the interest being calculated at Rs.26,88,000/- and the
additional penal interest agreed by the defendants at 2% per month on the
part principal amount of Rs.30,00,000/- agreed by the defendants, and the
interest being calculated for the period commencing from 01.06.2016 to
31.01.2021 being 56 months and the interest arrived at Rs.33,60,000/- in all
the aforesaid suit claim, together with the future interest payable by the
defendants till the date of realisation of the suit claim;
b) cost of the suit.
***
For plaintiffs: Mr. A.Palaniappan
for Mr. G.R.Ravichandran
For defendants: Ms. D.Veda
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3
ORDER
The suit had been filed seeking recovery of a sum of Rs.1,08,48,000/-
against the defendants binding them to jointly and severally pay the said
amount to the plaintiffs. The plaintiffs claim the said amount under an
agreement entered into by the plaintiffs with the first defendant which was at
that particular point of time, represented by the second and third defendants.
That agreement was marked as Ex.P-3. It was termed as a contract. It is
dated 12.10.2015. It was stated that the defendants, who were termed as the
borrowers sought loan and accordingly, the plaintiffs had advanced a sum of
Rs.30/- lakhs whcih was repayable in 12 months. The rate of interest was
determined at 12% per year. There was a further clause which stipualted that
if the amount was not paid, then the borrowers, who are the defendants
herein, would be liable to pay an additional interest of 2% termed as penal
interest.
2. It is contended by the learned counsel that since the defendants had
agreed to such terms, they are bound by such terms. It is also stated that it
would be extremely improper if the Court were to susbstitute its terms for the
agreement entered into between the parties.
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3. Since the defendants had not repaid the amount, the plaintiffs had
issued a notice on 21.02.2018 which was marked as Ex.P-7. It must also be
mentioned that on the date of the agreement, the defendants had also
executed a promissory note under Ex.P-5 which was signed by the fourth
defendant. A receipt for the amount of Rs.30/- lakhs was also issued which
was marked as Ex.P-6. A reply had been sent to Ex.P-7 which was marked as
Ex.P-. The plaintiffs filed a rejoinder which was marked as Ex.P-9. There
was a further reply to the said rejoinder and that was marked as Ex.P-10.
Ex.P-12 is the original balance sheet filed before the Income Tax Department
by the plaintiffs which reflected the liability to the plaintiffs towards the said
advance made to the defendants.
4. A note had been placed by the Registry that though the first
defendant had not been served, the second to eigth defendants had been
served on 28.07.2021. The fourth defendant had been served on 29.07.2021.
The fifth defendant had been served on 23.07.2021 and the sixth defendant
had been served on 10.08.2021. There is a noting with respect to the service
on the third defendant. However counsel had entered appearance for the
defendants.
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5. A perusal of the notes paper reveal that pending the suit the
plaintiffs and the defendants were also engaged in brining about an amicable
settlement. Thereafter, by an order dated 25.02.2022, the defendants were
directed to file their written statement on or before 28.03.2022 with a petition
to condone the delay. It was stipulated that if they fail to do so, they would
be set ex-parte. On 28.03.2022, it was again noted that the defendants had
not filed their written statement and consequently, they were set ex-parte.
6. The plaintiff was then invited to adduce evidence before the Court.
The first plaintiff examined himself as PW-1. He marked the documents
which had been mentioned in the earlier part of this order.
7. The learned counsel pointed out the relief sought in the plaint and
stated that the interest portion was in two separate parts. One with respect to
12% as agreed in the agreement /Ex.P-3 at the time of borrowal and the other
with respect to 2% as agreed between the parties in the subsequent clause in
the agreement /Ex.P-3.
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8. In view of the fact that the defendants had taken a concious decision
not to contest the case of the plaintiffs and as a matter of fact, in the reply
notice under Ex.P-8, there has been an admission of borrowal of Rs.48/-
lakhs and since interest follows any borrowal, I hold that the plaintiffs had
established the averments made in the plaint by adjudicating necessary oral
and documentary evidence.
9. Hence, the suit is decreed as prayed for with costs. Consequently,
connected Miscellaneous Petition is closed.
19.09.2022
Index:Yes/No
Web:Yes/No
vsg
Speaking/Non Speaking Order
1. List of Witnesses Examined on the side of the Plaintiffs:-
1. P.W.1 – Mr. Yogesh Chand Baghmar
2. List of Exhibits Marked on the side of the Plaintiff:-
1. Ex.P1 is the print out copy of the email dated 25.02.2015
sent to the plaintiff by the 2nd defendant on behalf of the 1st
defendant (Certificate under Section 65B is submitted);
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2. Ex.P2 is the print out copy of email dated 25.02.2015 sent
by the 1st plaintiff to the 2nd defendant (Certificate under
Section 65B is submitted);
3. Ex.P3 is the print out copy of email sent by the 1 st plaintiff
to the 2nd defendant dated 26.02.2015 (Certificate under
Section 65B is submitted);
4. Ex.P4 is the original Contract between 2nd plaintiff and the
defendants dated 12.10.2015;
5. Ex.P5 is the original Promissory Note dated 12.10.2015
executed by the 4th defendant in favour of the 2nd plaintiff;
6. Ex.P6 is the original Receipt dated 12.10.2015 issued by the
4th defendant;
7. Ex.P7 is the original legal notice dated 21.02.2018 sent by
the plaintiff to the defendants with AD Card and returned
cover;
8. Ex.P8 is the reply notice dated 09.03.2018 sent by the
counsel for the defendant;
9. Ex.P9 is the original Rejoinder Notice dated 01.09.2018
sent by the plaintiff to the defendants with acknowledgment
card and returned cover;
10. Ex.P10 is the Reply to the Rejoinder dated 10.10.2018 sent
by the counsel for the defendants;
11. Ex.P11 is the print out copy of Statement of Accounts
(Certificate under Section 65B is submitted);;
12.Ex.P12 is the original Balance Sheet filed before the
Income Tax Department by the plaintiffs.
19.09.2022
vsg
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN, J.
Vsg
C.S.No. 222 of 2021
And
A.No. 2354 of 2021
19.09.2022
https://www.mhc.tn.gov.in/judis
