Atul Agarwal v. M/S Ascent Infracon Pvt Ltd

1. The plaintiff has instituted the present summary suit against the defendant/company praying inter alia for a decree of `49,94,380/-, alongwith interest payable @24% from the date of institution of the suit till realisation.

2. The suit was registered on 19.09.2012 and summons were issued to the defendant in the prescribed format, returnable on 01.03.2013. Repeated efforts were made by the plaintiff to serve the defendant with the summons in the suit but it remained unserved. Finally, the plaintiff had filed an application under Order V Rule 20 CPC, for effecting substituted service on the defendant through publication, which was duly allowed vide order dated 10.10.2014. 2015:DHC:1349 Despite the fact that the defendant was served through publication in the newspaper, “Statesman” published on 19.11.2014, none has appeared on their behalf. As a result, the defendant is proceeded against ex parte.

3. Learned counsel for the plaintiff states that as the defendant has failed to enter appearance in the suit, his client is entitled to a decree under Order 37, Rule 2(3) of the CPC.

4. As per the averments made in the plaint, the defendant/company did not have sufficient funds to purchase a commercial property bearing plot No.62, Gandhi Road, Dehradun, Uttranchal and it had approached the plaintiff to partly finance/fund the purchase. At that time, the defendant/company had assured the plaintiff that they would repay the loan amount on or before 28.08.2010 alongwith interest @12% per annum. The plaintiff had agreed to advance a sum of `28 lacs to the defendants with an understanding that the said amount would be repaid on or before 28.08.2010, with interest payable @12% per annum.

5. The said understanding was reduced into writing by the parties who had executed an Agreement dated 01.04.2009, wherein the defendant/company had admitted having received a sum of `28 lacs from the plaintiff. It was also agreed that loan amount would carry interest of a sum of `6,72,000/-, and the entire amount would be payable, on or before 28.08.2010. Clause 2 of the Agreement mentions that two cheques were issued by the defendant/company in favour of the plaintiff, bearing No.02001[6] dated 01.04.2009, for a sum of `5,000/- and No.02001[7] dated 28.08.2010, for a sum of `34,67,000/-, both drawn on IDBI Bank, Ocean Complex, P-6, Sector 18, Noida. The defendants had given an assurance to the plaintiff that both the aforecited cheques would be honoured on presentation, on the dates mentioned therein.

6. Counsel for the plaintiff states that in terms of Clause 4 of the Agreement, the defendant/company had agreed that in the event of any default on its part in honouring the two cheques mentioned above, they would pay interest to the plaintiff on the loan amount @24% p.a., reckoned from 28.08.2010. It is submitted that when the plaintiff had presented the first cheque dated 01.04.2009 for a sum of `5,000/-, for encashment, the same was duly encashed but on the second cheque for `34,67,000/- being presented, it was dishonoured by IDBI Bank, the defendant/company’s banker and in terms of the Memo dated 28.10.2010 the plainitff’s banker, HDFC Bank Ltd, New Delhi Branch, had informed him that the funds in the account of the said company were insufficient.

7. Aggrieved by the dishonour of the aforesaid cheque, the plaintiff had issued a legal notice dated 08.11.2010 to the defendant/company under Section 138 of the Negotiable Instruments Act calling upon it to pay the amount of the dishonoured cheque along with interest. The said notice was duly served on the addressees, but it had failed to elicit any response from the defendant/company or from its directors. As a result, the plaintiff was compelled to file a complaint case against the defendant/company and its Directors under Section 138 of the Negotiable Instruments Act, which is stated to be pending trial before the Court of the Learned CMJ, Noida. Learned counsel states that contemporaneously, the plaintiff had instituted the present summary suit against the defendant/company for recovery of the cheque amount that was dishonoured, alongwith the agreed rate of interest, that comes to a sum of `49,94,380/- with interest from the date of institution of the suit, till realization.

8. As per the averments made in the plaint, the defendant/company is liable to pay an amount of `34,67,000/- to the plaintiff, together with interest @ 24% per annum from 28.08.2010, the date when a cheque for the said amount was issued in favour of the plaintiff till, 28.08.2012, the date of institution of the present suit. Learned counsel submits that if the interest component on the principal amount is calculated at the agreed rate of 24% per annum, it would come to `15,27,380/- and therefore, the plaintiff is, entitled to a decree for a sum of `49,94,380/- against the defendant/company, however, the plaintiff would be agreeable to reduction in the interest rate from the date of institution of the suit, till realization.

9. As noted above, the suit has remained uncontested by the defendant/company, and even after being served through alternate mode, it has failed to enter appearance within the period prescribed under Order 37 of the CPC. Resultantly, the suit has remained uncontested.

10. Having regard to the averments made in the plaint and on perusing the documents placed on record, this Court is of the opinion that the plaintiff is entitled to a decree against the defendant/company for a sum of `49,94,380/-. It is further directed that the plaintiff shall be entitled to pendent lite and future interest on the decretal amount @12% per annum from the date of the institution of the suit, till realisation.

11. Ordered accordingly. The suit is decreed in favour of the plaintiff and against the defendant for a sum of `49,94,380/- together with pendente lite and future interest @12% per annum, alongwith the costs of the suit.

12. Decree sheet be drawn up accordingly. (HIMA KOHLI) FEBRUARY 10, 2015 JUDGE rkb/rs