Delhi District Court
Mona Suri vs Consolidated Engineering Co on 27 March, 2024
IN THE COURT OF MS. MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE-06,
SOUTH EAST DISTRICT, SAKET COURTS, DELHI
CS DJ No.533/2023
CNR No.DLSE010078212023
MONA SURI
W/O LATE ROMESH SURI
R/O C-342, 1ST FLOOR, DEFENCE COLONY,
NEW DELHI-110024 .....PLAINTIFF
VERSUS
CONSOLIDATED ENGINEERING CO.
8, K BLOCK, CHAUDHARY BUILDING
CONNAUGHT CIRCUS
NEW DELHI - 110001.
[email protected]
+91-9810048167 .....DEFENDANT NO.1
MR. RAJIV SHAM LAL
PARTNER, CONSOLIDATE ENGINEERING CO.
8, K BLOCK, CHAUDHARY BUILDING
CONNAUGHT CIRCUS
NEW DELHI - 110001.
[email protected]
+91-9810048167 .....DEFENDANT NO.2
Date of Filing : 27.07.2023
Date of Judgment : 27.03.2024
Final Decision : Suit Decreed.
For plaintiff : Sh. Arjan Kakkar, Adv.
For defendants : Sh. Abhishek Rai, Adv.
Defendant No.1 and 2 have not filed leave to defend.
CS DJ No.533/2023 Page No.1 of 6 ADJ-06/SE/SKT/DELHI
JUDGMENT
1. This is a suit filed under Order XXXVII of The Code of Civil Procedure (in short "CPC") by plaintiff against defendants for recovery of sum of Rs.34,18,875/- (Rupees Thirty Four Lakhs Eighteen Thousand Eight Hundred Seventy Five only) alongwith interest and cost.
2. The summons of the suit was directed to be issued to defendants at their address U/o XXXVII CPC in the prescribed form as defined under Order XXXVII (2) (Sub Rule 2) CPC vide order dated 04.08.2023. Appearance was filed by defendants on 25.08.2023. Vide order dated 20.12.2023, notice of the application of plaintiff under Order XXXVII Rule 3(4) CPC for issuance of summons for judgment upon defendants was directed to be issued. Defendant No.1 was served with the summons for judgment through its employee Sh. Virender Kumar on 15.01.2024 and defendant No.2 was served personally on 15.01.2024. However, defendants did not file any application seeking leave to defend the present suit within statutory period and even thereafter.
3. The court perused the entire record with the assistance of learned counsel for plaintiff.
4. Brief narration of facts as disclosed in the plaint are that in the year 2013, defendant no.2 contacted plaintiff for taking CS DJ No.533/2023 Page No.2 of 6 ADJ-06/SE/SKT/DELHI a loan of Rs.30 lakhs which was disbursed by way of cheque for Rs.20 lakhs on 14.08.2013 and Rs.10 lakh by cash with condition that till the time the principal amount is not returned, defendant no.2 shall pay an interest of Rs.16,667/- per month by cheque/bank transfer and Rs.18,330/- by cash.
5. The account from which the amount was transferred was jointly held by plaintiff and her late husband Mr. Romesh Suri who passed away in December, 2013. Defendant No.2 paid interest with some delay till the month of April 2020. During 2013-2020, plaintiff requested defendant No. 2 to return back principal amount of Rs.30,00,000/- after demise of her husband but defendant No.2 delayed the same on one pretext of the other.
6. Post April 2021, defendant No.2 failed to pay any interest or principal amount. Defendant No.2 issued a security cheque of Rs.20,00,000/- to return part of principal amount which on presentation returned unpaid with remark "Account Closed". Plaintiff lodged a complaint against defendant No.2 at PS Defence Colony vide DD No.54 dated 10.05.2022. During preliminary enquiry/investigation, defendant No.2 agreed to settle the matter by making payment of said amount vide Memorandum of Understanding dated 13.12.2022. Defendants paid Rs.50,000/- as a token amount on the date of executing of Memorandum of Understanding and defendant No.2 agreed to pay Rs.19,50,000/- by way of cash/cheque/demand draft along with interest @ 10%. Defendant No.2 also agreed to pay an additional amount of CS DJ No.533/2023 Page No.3 of 6 ADJ-06/SE/SKT/DELHI Rs.10,00,000/- on or before 30.04.2023 due to delay in repayment of principal and interest as stated above. It was agreed that the balance amount of Rs.29,50,000/- along with interest shall be paid to plaintiff in three monthly installments i.e. January, February and Mach, 2023 but no amount was ever paid to plaintiff.
7. Due to non-payment of legitimate dues by defendants, plaintiff is facing a lot of financial difficulties with very little means. Instead of making payment, defendant No.2 is making false promises and failed to pay legitimate dues against the settled Memorandum of Understanding and defendants are liable to pay an amount of Rs.34,18,875/- along with pendent-lite and future interest @ 10% per annum.
8. The present suit is based on certified copy of bank statements of plaintiff, original cheque bearing no.349540 dated 15.01.2022 drawn on Axis Bank Ltd., New Delhi Branch, New Delhi-110001 of Rs.20,00,000/- and original Memorandum of Understanding dated 13.12.2022 executed between plaintiff and defendants bearing their signatures. Hence, the suit is covered within the provisions of Order XXXVII CPC and is also filed within limitation. There is no relief claimed by plaintiff which does not fall within the ambit of the provisions of Order XXXVII CPC.
CS DJ No.533/2023 Page No.4 of 6 ADJ-06/SE/SKT/DELHI
9. It is relevant here to refer the relevant provisions of law which are as under:-
Order XXXVII Rule 3(5) CPC.
The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court of Judge to be Just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant to not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
Order XXXVII Rule 3(6) CPC.
At the hearing of such summons for judgment:-
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith;
10. In view of the above mentioned provisions of law, it is clear that if defendants does not apply for leave to defend CS DJ No.533/2023 Page No.5 of 6 ADJ-06/SE/SKT/DELHI within 10 days from service of summons for judgment, plaintiff shall be entitled to judgment forthwith. As per record, defendants were served with the summons for judgment on 15.01.2024. However, despite service, defendants did not file any leave to defend application within the statutory period and thereafter. Accordingly, the allegations made in the plaint are deemed to be admitted by defendants by fiction of law, entitling the plaintiff to a decree straightway.
11. In view of aforesaid discussion, suit of the plaintiff is decreed in her favour and against defendants for a sum of Rs.34,18,875/- (Rupees Thirty Four Lakhs Eighteen Thousand Eight Hundred & Seventy Five Only) along with pendent lite and future interest @10% per annum which is the agreed rate of interest. Defendants are liable to pay the decreetal amount jointly and severally. Cost of suit is also awarded in favour of plaintiff.
12. Decree-sheet be prepared accordingly.
13. File be consigned to Record Room, after due compliance.
Announced in Open Court (MONA TARDI KERKETTA) on 27th Day of March, 2024 Addl. District Judge-06 (SE) SAKET COURT:NEW DELHI CS DJ No.533/2023 Page No.6 of 6 ADJ-06/SE/SKT/DELHI