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$-18 HIGH COURT OF DELHI
CS (OS) 2856/2015
EDGECLIFE DEVELOPERS LLP Plaintiff
Through: Ms. Padmapriya, Advocate.
ORDER
1. The suit be renumbered as a commercial suit.
2. LA. No. 3762/2016 has been filed for recover^' of Rs. 2,66,50,000 along with pendente-lite and future interest @ 18% per annum and costs under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 ('CPC').
3. The Defendant stands served with summons for appearance under OrderXXXVII ofthe CPC. As per records, the service was effected upon T the Defendant on 19^*^' January, 2016 which is clear from track report of the postal authority annexed to the application. However, despite service, the Defendant has failed to enter its appearance withinthe stipulated time period. The Defendant is accordingly proceeded ex parte. This being a summary suit, the Plaintiff is entitled to judgment forthwith in terms of CS (OS) No. 2856of2015 Page[1] of[5] 2016:DHC:9356 Order XXXVII Rule 6 (a) CPC.
4. The averments in the plaint are that the Plaintiff LLP agreed to purchase equity shares in the Defendant company and, accordingly, made payment of Rs. 2,00,00,000 to the Defendant towards share application money in the following manner:
UTBIH 15149171517 dated 29.05.2015 by United Bank of India, GK 1, ND-48 for a sum of Rs.50,00,000/- (Rupees Fifty lakhs).
UTBIH 13269414407 dated 26.09.2013 by United Bank of India, GK-1, ND-48 for a sum of Rs.50,00,000/- (Rupees Fifty lakhs).
5. The said payments were acknowledged by the Defendant by issuing receipts, which are placed on record. The Plaintiff has also placed on record the bank certificates confirming the foregoing transfer amounts into the Defendant's account.
6. After repeated requests Ifom the Plaintiffto allot shares in terms ofthe share application, the Defendant expressed its inability to issue equity shares to the Plaintiff and sought to refund the principal amount of Rs. 2,00,00,000/- without any interest. The details of the cheques issued to the Plaintiff are as follows: a. Cheque bearing No. 000133 for Rs. 50,000,000/- dated 02.07.2015 b. Cheque bearing No. 167834 for Rs. 1,00,00,000/- dated 02.07.2015 CS (OS) No. 2856 of 2015 c. Cheque bearing No. 167835 for Rs. 50,00,000/- dated 02.07.2015.
7. Upon presentation for encashment, all the above cheques were dishonoured on account of insufficient funds. The Plaintiff has placed on record the said dishonoured cheques as well as the banker's memo issued by Union Bank of India dated 10^*^ August, 2015 certifying that the aforesaid three cheques were dishonoured for insufficient funds. The Plaintiff then issued a notice dated 11^'' August, 2015 to the Defendant demanding the aforesaid amount along with interest @ 12% per annum owing to the Defendant's failure to allot equity shares within the stipulated period of 60 days pursuant to the Companies Act, 2013.
8. It is evident that the Defendant is indebted to the Plaintiff in the sum of Rs. 2,00,00,000 along with interest since the transaction between the parties is a commercial transaction. The share application money was paid to the Defendant on 14^*^ June, 2011 (1 crore by cheque), 29^ September, 2013 (50 lakhs by RTGS) and 29^*^ May, 2015 (50 lakhs by RTGS). In terms of Section 42(6) of the Companies Act, 2013, the Plaintiff would be entitled to simple interest @ 12% per annum from the • th expiry ofthe 60 day from the date on which the share applicationmoney was paid by the Plaintiff. Section 42 (6) of the Companies Act, 2013 reads thus:
CS (OS) No. 2856of2015 Page[3] of[5] at the rate of twelve per cent, per annum from the expiry ofthe sixtieth day: Provided that monies received on application under this section shall be kept in a separate bank account in a scheduled bank and shall not be utilised for any purpose other than— (a) for adjustment against allotment of securities; or (b) for the repayment of monies where the company is unable to allot securities. \0
9. Section 80 ofthe Negotiable Instruments Act, IBSIwhich provides for payment of interest when no rate is specified reads thus:
Explanation.-When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour.
10. Accordingly, the suit is decreed in favour of the Plaintiff and against the Defendant in the sum of Rs. 2 crores together with simple interest @ 12% per annum from the date of expiry ofthe 60th day after the dates on which the respective amounts towards application money were received from the Plaintiff by the Defendant till the date of issuance of the corresponding cheque by the Defendant and @ 18% simple interest per annum on the amount from the date of the con'esponding cheque issued CS (OS) No. 2856 of2015 by t:le Defendant which was dishonoured till the date of payment. The ndant shall also pay the Plaintiff costs ofRs. 10,000. Defe
11. Decree sheet be drawn up accordingly. The application is disposed of.
S. MURMTDHAR, J