Delhi District Court
Sandeep Kumar Jadon vs Ecnon Residency Buildcon P Ltd on 2 November, 2023
IN THE COURT OF Ms. SHILPI M. JAIN, ADDITIONAL DISTRICT
JUDGE - 05, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
Civil Suit No. 581/19
CNR No. DLSW01-008513-2019
IN THE MATTER OF :
Sh. Sandeep Kumar Jadon,
S/o Sh. Amar Singh Jadon,
R/o RZC-25A, Durga Puri,
Vijay Enclave,
New Delhi-110045. .....Plaintiff
Versus
M/s. Ecnon Residency Buildcon Pvt. Ltd.
Registered office -
129, DLF Galleria Mall,
Mayur Vihar,
Phase-1, District Centre,
Delhi-110091.
(Through its concerned Directors) ....Defendant
Date of institution of the suit : 16.07.2019
Final Arguments heard on : 12.10.2023
Date of Judgment : 03.11.2023
SUIT FOR RECOVERY OF RS. 26,01,480/- ALONG WITH
INTEREST
EX-PARTE JUDGMENT
1.Present suit for recovery of Rs. 26,01,480/- (Rupees Twenty Six Lacs One Thousand Four Hundred Eighty only) filed by plaintiff.
2. Briefly stated, plaintiff entered into Memorandum of Understanding dated 17.05.2014 as investor/purchaser in the project the defendant for CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 1 of 7 residential apartments admeasuring 999 sq. ft. for a total consideration of Rs.29,37,430/- and made payment for Rs.9,98,726/- via seven account payee cheques, details of which are as follows:-
SL.NO. CHEQUE NO. DATE AMOUNT BANK
1. 366905 27.02.2014 Rs. 3,00,000/- YES BANK
2. 366907 12.02.2014 Rs. 28,726/- YES BANK
3. 366913 12.04.2014 Rs. 1,00,000/- YES BANK
4. 366914 13.05.2014 Rs. 1,50,000/- YES BANK
5. 366915 15.05.2014 Rs. 2,00,000/- YES BANK
6. 366916 30.04.2014 Rs. 1,20,000/- YES BANK
7. 988904 06.05.2014 Rs. 1,00,000/- YES BANK
Total Rs. 9,98,726/-
3. It is further averred that, said investment of plaintiff was under the scheme of "Return of All Investment (ROI)" whereby defendant had undertaken to pay back the invested amount of Rs. 9,98,726/- with appreciation @24% on completion of 12 month from the date of MOU.
4. It is further averred that, on expiry of MOU dated 17.05.2014, same was further renewed for 12 months i.e. from May, 2015 to May, 2016 as per the mutual consent between the parties.
5. It is further averred that, in compliance of said MOU, defendant issued two cheques of Rs. 9,98,726/- towards refund of investment made by the plaintiff and Rs. 4,83,223/- towards appreciated value on the investment, both dated 16.06.2016. However, on representation both the cheques returned unpaid with the reason "Insufficient Funds" vide return memo dated 17.06.2016. It is further averred that, at request of defendant, plaintiff again represented said cheque but same were again dishonoured vide two separate cheque return memos dated 14.07.2016 with the same reason "Insufficient Funds".
CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 2 of 7
6. It is further averred that, plaintiff has separately filed a criminal case against defaulted for dishonour of aforesaid cheque vide CC no. 5008722/2016 titled as "Sandeep Kumar Jadon Vs Ecnon Residency Buildcon Pvt. Ltd. & Ors." and the same is still pending before Ld. MM, Dwarka Court, New Delhi. Hence, present suit is filed before this court for Rs. 14,78,114/- towards aggregated value of aforesaid two cheques along with further sum of Rs. 11,23,366/- towards the accrued interest on principal amount of Rs. 14,78,114/- w.e.f. May 2016 till filing of the present suit along with pendent-elite and future interest @24% per annum.
7. Summons of present suit was issued to defendant but same could not be served for the reason "defendant has left the given address". Therefore, defendant was served through publication and proceeded ex-parte vide order dated 01.06.2023 and matter was fixed for PE.
8. PW1 in his examination-in-chief through affidavit Ex.PW1/A has deposed on line of averments made in the plaint mentioned above. He inter- alia proved his avernment in the plaint and relied upon the following documents:-
S. PARTICULAR OF DOCUMENTS EXHIBIT/
NO. MARK
1 Certified copy of memorandum of understanding dated 17.05.2014 Ex. PW1/1
2 Certified copy of payment receipt dt. 01.03.2014 for Rs. 28,726/- ExPW1/2
3 Certified copy of payment receipt dt. 01.03.2014 for Rs. 3,00,000/- ExPW1/3
4. Certified copy of payment receipt dt. 20.05.2014 for Rs. 1,00,000/- ExPW1/4
5. Certified copy of payment receipt 20.05.2014 for Rs. 1,20,000/- ExPW1/5
6. Certified copy of payment receipt dt. 20.05.2014 for Rs. 1,00,000/- Ex.PW1/6
7. Certified copy of payment receipt dt. 20.05.2014 for Rs. 2,00,000/- Ex.PW1/7
8. Certified copy of payment receipt dt. 20.05.2014 for Rs. 1,50,000/- ExPW1/8
9. Memorandum of understanding dt. 17.05.2015 ExPW1/9 CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 3 of 7
10. Certified copy of cheque for Rs. 9,98,726/- bearing No. 182705 dt. ExPW1/10 16.06.2016, Vijya Bank
11. Certified copy of cheque for Rs. 4,83,223/- bearing No. 182706dt. ExPW1/11 16.06.2016, Vijya Bank
12. Certified copies of two Cheque returning memos, both dt. ExPW1/12& 17.06.2016 ExPW1/13 13 Certified copies of two Cheque returning memos, both dt. ExPW1/14 & 14.07.2016 ExPW1/15
14. Certified copy of legal notice dt. 04.08.2016 ExPW1/16
15. Certified copies of 10 postal receipts ExPW1/17 to ExPW1/26
16. Certified copies of four acknowledgement cards ExPW1/27 to ExPW1/30
17. Two returned postal covers ExPW1/31 & ExPW1/32
9. There is no cross-examination of PW1. As such, the testimony of PW1 and the documents proved by him has remained unrebutted. As mentioned above, vide order 01.06.2023, the defendant was proceeded exparte and therefore there was no occasion for him to lead defendant evidence.
10. Arguments heard. Record perused.
11. It is well settled law that, even if defendant is proceeded ex-parte, Trial Court is bound the consider facts of case to verify cause of action, jurisdiction, limitation etc. In the present case, however, though the transaction between the parties relates to a scheme of 'Return on Investment (ROI)' guarantying definite return on the investment made by an individual in the project, but the suit is a simple suit for recovery based on a cheque. Both Cheques were dated 16th June 2016 and dishonoured on representation i.e. on 17th June 2016 and 14th July 2016 respectively.
12. It is averred that, upon its dishonour, plaintiff issues demand letter dated 04.08.2016 but, same was never replied by defendant. The Plaintiff CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 4 of 7 simply submits that, the cheque in question was dishonoured and gave it a cause of action to file the suit for recovery. The cause of action arose only when the cheque was dishonoured and hence, the suit is filed within limitation.
13. No doubt, cheque is bill of exchange for which aggrieved person has civil as well as criminal remedy under the law. For the purpose of clarification law on limitation for bill of exchange is reproduced herein below:
ARTICLE DESCRIPTION OF SUIT PERIOD OF TIME FROM
LIMITATION WHICH
PERIOD
BEGINS TO
RUN
Article 35 On a bill of exchange or promissory Three years The date of the
note payable on demand and not bill or note
accompanied by any writing
restraining or postponing the right to
sue.
Article 40 By the payee to against the drawer of Three years The date of the
a bill of exchange, which has been refusal to
dishonoured by non- accept.
acceptance.
Article 113 Any suit for which no period of Three years When the right
limitation is provided elsewhere in to sue accrues.
this Schedule
14. To sum up, the period of limitation is three years. Only the date of commencement of limitation differs based on the further transaction on the said instruments. On issuance of cheque, the right to encash it commences from the date of the cheque, but the right to sue based on the cheque will commence only if the cheque is not honoured on presentation. Therefore, when the right to sue is restricted by law, Article 35 gets excluded and Article 40 r/w Article 113 alone is applicable. Therefore, taking into consideration the date of dishonour of cheque, present suit is in limitation CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 5 of 7 i.e. to say within 3 years from date of dishonour i.e. 14th July 2016.
15. Further, it is averred by the plaintiff that an amount of Rs. 14,78,114/- (Rs. Fourteen Lac Seventy Eight Thousand One hundred Fourteen only) is aggregated amount of two cheques bearing No. 182705 dated 16.06.2016 for Rs. 9,98,726/- and No. 182706 dated 16.06.2016 for Rs. 4,83,223/- issued by the defendant in his favour. However, corrected aggregation amount comes to Rs. 14,81,949/- (Rupees Fourteen lacs eighty one thousand nine hundred forty nine only).
16. Thus, considering the facts and circumstances of present suit and unrebutted testimony of Plaintiff this court is in considered opinion that, plaintiff is entitled for decree of principle amount of Rs. 14,81,949/- (Rupees Fourteen lacs eighty one thousand nine hundred forty nine only). However, Plaintiff has claimed Rs. 11,23,366/- (Rs. Elevan Lacs Twenty Three Thousand Three Hundred Sixty Six Only) towards interest alongwith pendetelite and future intt. @24% per annum. But, no evidence for such rate of interest is given by plaintiff. Thus, keeping in view above facts and circumstances, this court is not incline to award any interest for the pre-suit period. However, plaintiff would be entitled for pendentelite and future interest @9% from date of filing present suit till actual realization.
17. Suit is decreed in favour of plaintiff and defendant liable to make payment of Rs. 14,81,949/- (Rupees Fourteen lacs eighty one thousand nine hundred forty nine only) alongwith intt. @ 9% from date of filing present suit till actual realization. Cost of the suit is also awarded in favour of plaintiff.
CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 6 of 7
18. Decree sheet be prepared accordingly and file be consigned to Records after due compliance.
Announced in the open court on 03.11.2023 (Shilpi M. Jain) Additional District Judge-05 South West District/Dwarka Courts New Delhi CS No. 581/19 Sandeep Kumar Jadon vs. Ecnon Residency Buildcon P. Ltd. Page no. 7 of 7