Madras High Court
Ravi Krishnan vs Vijay R. Vakharia on 9 October, 2023
C.S.No.269 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 09..10..2023
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
Civil Suit No.269 of 2022
Ravi Krishnan
..... Plaintiff
-Versus-
Vijay R. Vakharia
..... Defendant
Suit filed under Order IV, Rule 1 of the Madras High Court [Original Side]
Rules, 1956 r/w order VII Rule 1 of the Code of Civil Procedure, 1908 praying for
a decree directing the defendant to pay a sum of Rs.1,07,69,779/- with interest at
12% p.a. from the date of plaint till date of realization and for costs.
For Plaintiff : Mr.B.Ravi
For Defendant : Set Ex-parte
JUDGEMENT
This is a suit for a money decree based on the dishonored cheques for
recovery of a sum of Rs.1,07,69,779/- from the defendant with interest at 12% p.a.
from the date of plaint till date of realization and for costs.
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2. The case of the plaintiff in brief is that he is the cousin of late Lakshmi
Balu, wife of A.Balu @ Balasubramanian [hereinafter will be referred in short as
“A.Balu”]. The said A.Balu and Lakshmi Balu had no issues from the wedlock.
Lakshmi Balu predeceased A.Balu on 05.01.2013. A.Balu's elder brother had also
predeceased him. The said A.Balu and his wife Lakshmi Balu owned a flat at
Chamiers Road in Chennai. The defendant was the neighbour. The couple had
decided to sell their flat for a total sale consideration of Rs.2,00,00,000/- (Rupees
Two Crores only). The defendant had agreed to purchase the same. The defendant
approached A.Balu through one Gunasekaran who was the driver of A.Balu.
Accordingly, the property was conveyed to the defendant. Though the sale
consideration was agreed at Rs.2,00,00,000/- (Rupees Two Crores only), there was
an oral agreement between both the vendor and the purchaser that the purchaser
(defendant herein) shall pay a sum of Rs.1,27,44,000/- (Rupees One Crore Twenty
Seven Lakhs and Forty Four Thousand only) at the time of registration of the
property and pay the balance of Rs.72,56,000/- (Rupees Seventy Two Lakhs and
Fifty Six Thousand only) as the fund was arranged by him. Such an agreement was
arrived at at the request of the defendant as he was not having sufficient fund in
hand and was requiring some time to arrange for the entire sale consideration. It
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was also agreed by the defendant to pay a sum of Rs.10,00,000/- (Rupees Ten
Lakhs only) to one Gunasekaran towards commission for his work. The defendant
also agreed to permit A.Balu to continue his possession of his flat during his life
time. The sale was concluded and a deed of sale was registered in favour the
defendant on 12.12.2011 by A.Balu and his wife. The defendant had paid the
balance sale consideration of Rs.72,56,000/- as agreed and undertook by him
through a cheque on 09.03.2012.
3. Immediately thereafter, the defendant approached the said A.Balu for loan
of Rs.85,00,000/- and the said A.Balu had lent a sum of Rs.25,00,000/- to the
defendant on 12.03.2012 through a cheque drawn on Canara Bank which was
cleared on 14.03.2012 and the balance loan of Rs.60,00,000/- was paid to the
defendant on 10.12.2012 through a cheque drawn on Canara Bank which was
cleared on 12.12.2012. That apart, Balu also paid a sum of Rs.10,00,000/- being
the agreed commission amount payable to Gunasekaran on behalf of the defendant
at his request and promised that he would reimburse the same. The defendant did
not repay neither the loan amount nor the commission amount which was paid by
A.Balu on behalf of the defendant. However, the defendant had issued three
cheques dated 01.08.2015, for Rs.25,00,000/-, Rs.25,00,000/- and Rs.10,00,000/-
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bearing Cheque Nos.561338, 561339 and 561340 respectively drawn on Oriental
Bank of Commerce, R.K.Salai, Chennai in favour of the deceased Balu. When the
cheque bearing No.561340 was presented by A.Balu for collection, it was returned
as unpaid on 27.08.2015 with the reason “insufficient funds” . The two other
cheques which were presented for collection were also returned unpaid on
23.10.2015.
4. Due to his ill-health, the deceased A.Balu requested the plaintiff to take
complete care of his estate and he made the plaintiff as his nominee in his bank
account and also authorized the defendant to sign cheques and operate his account
and deal with the bank on all issues without any limitations. He also gave a letter
on 31.08.2015 under which he had assigned the responsibility of collecting and
recovering the debt owed by the defendant in the presence of Gunasekaran and one
M.Suresh.
5. After the death of Balu on 10.09.2015, the flat was under the possession
of the plaintiff and his staff had been put in occupation of the same. It was the
plaintiff who had performed the last rites of the deceased as per wishes of the
deceased. Initially, the defendant had agreed to repay the amount borrowed by him
and told the plaintiff to retain the possession of the flat until repayment of the loan.
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The defendant did not repay the loan amount. Hence, the plaintiff caused a legal
notice on 23.12.2015 demanding repayment of loan. On 23.12.2015 the defendant
issued a reply through his counsel repudiating the claim of the plaintiff. In the last
week of December, 2015, the defendant prevented the staff members of the plaintiff
from entering the flat. The plaintiff issued a rejoinder on 16.01.2016 to the reply
notice. Thereafter, the plaintiff had filed a suit in O.S.No.2166 of 2016 on the file
of the XII Assistant Judge, City Civil Court, Chennai for mandatory injunction to
remove the iron gate which prevented the ingress and egress to the property.
Pending the above said suit, the defendant sold the property to one V.Raman and
Kamala Raman. Hence, the present suit for recovery money.
6. Though the defendant entered appearance through his counsel and filed
his written statement, he was set ex parte on 27.07.2023 as none represented him
on that date. Thereafter the case was posted for evidence of the plaintiff. On
26.09.2023, the plaintiff examined himself as P.W.1 , one P.Gunasekaran who
acted as a broker for the sale of the property and also a witness to the Gift Deed has
been examined as P.W.2 and one M.Suresh who was the other witness to the Gift
Deed was examined as P.W.3 and Ex.P.1 to P.20 have been marked. As the
defendant was already set exparte, on 04.10.2023, the suit was directed to be
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posted on 09.10.2023 for arguments of the plaintiff. Accordingly, the suit has been
listed today for arguments.
7. Heard the learned counsel for the plaintiff and perused evidence of the
plaintiff as P.W.1 and Ex.P.1 to Ex.P.20 carefully.
8. The plaintiff (P.W.1) in his evidence has clearly narrated how the
defendant is liable to pay the amounts covered under three different cheques. The
plaintiff has also established the deceased Balu had assigned the debts to him to
collect. The plaintiff has also filed the gift deed dated 17.07.2015 in his favour. The
defendant though filed a detailed written statement denying the allegations made in
the plaint and contending that it was Balu who had requested him for a loan and he
arranged for Rs.72,56,000/-, the defendant had not chosen to contest the suit and
he remained exparte.
9. Ex.P.1 is the certified copy of the sale deed executed by A.Balu and
Lakshmi Balu in favour of the defendant on 12.12.2012. Ex.P.2 is the statement of
account of the deceased Balu for the period between 01.01.2012 to 30.03.2012.
Ex.P.3 is the original cheque counter foils for Rs.25,00,000/- and Rs.60,00,000/-
respectively. Ex.P.4 is the Original Pass Book pertaining to A/c N.2604101000585
for the period from 2011 to 2013. Ex.P.5 is the computer generated copy of
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Income Tax Returns of deceased Balu for the period from 2012 to 2013 along with
section 65B affidavit. Ex.P.6 is the computer generated copy of the death certificate
of Lakshmi Balu dated 19.01.2013. Ex.P.7 is photo copy of the legal heirship
certificate. Ex.P.8 is the original Gift Deed executed by late Balu in favour of the
plaintiff on 17.07.2015. Ex.P.9 is the true copy of the letter of authority executed
by deceased Balu in favour of plaintiff to handle the bank account dated
24.07.2015. Ex.P.10 is the original cheque No.561338 & 561339 for
Rs.25,00,000/- each and Cheque No.561340 for Rs.10,00,000/- drawn on Oriental
Bank of Commerce, R.K.Salai, favouring A.Balu towards repayment of loan dated
01.08.2015. Ex.P.11(series – 4Nos.) are the printout of the E-mail correspondence
between the plaintiff and the defendant with Section 65B affidavit. Ex.P.12 is the
original return memo by bank for Cheque No.561340 for Rs.10,00,000/- dated
27.08.2015. Ex.P.13 is the original letter of assignment of debt for recovery of
money dated 31.08.2015. Ex.P.14 is the computer generated copy of death
certificate of A.Balu @ Balasubramanian dated 18.09.2015. Ex.P.15 (series – 2
Nos.) is the original return memo by bank for cheque Nos.561338 & 561339 for
Rs.50,00,000/- dated 23.10.2015. Ex.P.16 is the office copy of the legal notice
issued by the plaintiff to the defendant dated 03.11.2015 along with postal receipt
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and returned cover. Ex.P.17 is the photocopy of the reply notice sent by the
defendant through a counsel dated 23.12.2015. Ex.P.18 is the office copy of the
rejoinder to reply issued by the plaintiff dated 16.01.2016 along with postal receipt.
Ex.P.19 is the certified copy of the sale deed executed by Vijay R.Vakharia
favouring V.Raman and Kamala Raman dated 09.06.2016. Ex.P.20 is the printout
of the E-mail correspondence between the Auditor of late A.Balu to the plaintiff
dated 30.01.2017 along with Section 65B affidavit.
10. The entire money transactions were borne out by records. The evidence
available on record would only indicate that after the entire sale consideration was
paid, the defendant approached the deceased A.Balu for a loan and availed the
loan. The cheques which were given by the defendant were dishonored. The
plaintiff has established the liability of the defendant to pay the amount covered
under the cheque. P.W.2 and P.W.3 supported the case of the plaintiff. The
defendant has not controverted the averments made in the plaint and he remained
ex parte. Considering the evidence and the documents available on record this court
is of the view that the plaintiff has established his case and therefore, he is entitled
for a decree as prayed for in the suit, however, post decree he is entitled for interest
on the suit amount only at 6% p.a.
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In the result, the suit is decreed with costs. The defendant is directed to pay
a sum of Rs.1,07,69,779/- to the plaintiff with interest at 12% p.a. on the abovesaid
amount from the date of plaint till this date and thereafter @ 6% p.a. on
1,07,69,779/- till date of realization in full.
Since the immovable property of the defendant has already been attached
under Order 38, Rule 5 of CPC before the judgment, it is needless to say that there
need not be further attachment in the execution proceedings.
09..10..2023
kmk
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Witnesses Examined on the side of the Plaintiff:
P.W.1 – Ravi Krishnan (Plaintiff)
P.W.2 – P.Gunasekaran
P.W.3 – M.Suresh
Witnesses examined and on the side of the defendant:-
Nil
Documents marked on the side of the Plaintiff:
Ex.P.1 12.12.2011 Certified copy of the sale deed executed by A.Balu and
Lakshmi Balu in favour of the defendant
Ex.P.2 - statement of account of the deceased Balu for the period
between 01.01.2012 to 30.03.2012
Ex.P.3 - Original cheque counter foils for Rs.25,00,000/- and
Rs.60,00,000/- respectively.
Ex.P.4 - Original Pass Book pertaining to A/c N.2604101000585
for the period from 2011 to 2013.
Ex.P.5 - Computer generated copy of Income Tax Returns of
deceased Balu for the period from 2012 to 2013 along
with section 65B affidavit.
Ex.P.6 19.01.2013 Computer generated copy of the death certificate of
Lakshmi Balu
Ex.P.7 26.02.2014 Photocopy of the legal heirship certificate.
Ex.P.8 17.07.2015 Original Gift Deed executed by late Balu in favour of the
plaintiff
Ex.P.9 24.07.2015 True copy of the letter of authority executed by deceased
Balu in favour of plaintiff to handle the bank account
dated 24.07.2015
Ex.P.10 01.08.2015 Original cheque No.561338 & 561339 for Rs.25,00,000/-
each and Cheque No.561340 for Rs.10,00,000/- drawn
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on Oriental Bank of Commerce, R.K.Salai, favouring
A.Balu towards repayment of loan
Ex.P.11 Printout of the E-mail correspondence between the
(series- 4 plaintiff and the defendant with Section 65B affidavit.
Nos.)
Ex.P.12 27.08.2015 Ex.P.12 is the original return memo by bank for Cheque
No.561340 for Rs.10,00,000/-
Ex.P.13 31.08.2015 Original letter of assignment of debt for recovery of
money
Ex.P.14 18.09.2015 Computer generated copy of death certificate of A.Balu
@ Balasubramanian
Ex.P.15 23.10.2015 Original return memo by bank for cheque Nos.561338 &
[Series – 561339 for Rs.50,00,000/-
Ex.P.16 03.11.2015 Office copy of the legal notice issued by the plaintiff to
the defendant along with postal receipt and returned
cover.
Ex.P.17 23.12.2015 Photocopy of the reply notice sent by the defendant
through a counsel
Ex.P.18 16.01.2016 Ex.P.18 is the office copy of the rejoinder to reply issued
by the plaintiff along with postal receipt.
Ex.P.19 09.06.2016 Certified copy of the sale deed executed by Vijay
R.Vakharia favouring V.Raman and Kamala Raman
dated
Ex.P.20 30.01.2017 Printout of the E-mailcorrespondence between the
Auditor of late A.Balu to the plaintiff along with Section
65B affidavit.
Documents marked on the side of the defendant:
Nil
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N.SATHISH KUMAR.J.,
kmk
Civil Suit No.269 of 2022
09..10..2023
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