Delhi District Court
M/S Sandhya Finance Ltd vs Smt. Saroj Rani on 25 July, 2023
Suit No. 535/17 Page 1 of 11
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 535/17
CNR No. DLSW01-006017-2017
In the matter of :
M/s Sandhya Finance Ltd.
(through one of its Directors- Sh. Rajender Kumar)
Office at F-605, LGF, Palam Extension-I,
Sector-7, Dwarka,
New Delhi - 110077 ....Plaintiff
Versus
1. Smt. Saroj Rani
R/o H.No.20, Mahesh Nagar,
Kaimri Road, Hisar
Also at :
Saroj Rani
R/o J-4, Canal Colony, Gangwa Road,
in front of Congress Bhawan, Hisar.
2. Sh. Deepak
S/o Sh. Baldev Ram
R/o H.No.20, Mahesh Nagar,
Kaimri Road, Hisar
Also at :
Deepak
R/o J-4, Canal Colony, Gangwa Road,
in front of Congress Bhawan, Hisar. ....Defendants
M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 2 of 11
Date of institution of the suit : 31.05.2017
Final Arguments Heard on : 23.02.2023
Date of Judgment : 25.07.2023
Decision : Ex-parte decreed
SUIT FOR RECOVERY OF Rs.9,00,000/- UNDER ORDER
XXXVII OF CPC
JUDGMENT :
1. Present suit has been filed for recovery of Rs. 9,00,000/- under Order XXXVII of CPC. The plaintiff company is a Company incorporated under the Indian Companies Act, 1956 and is engaged in the business of finance primarily alongwith other business activities as detailed in the Memorandum of Association. The Company's registered office is located at D-39, Palam Extension, Sector-7, Dwarka, New Delhi - 110077. Sh. Dharmendra Singh, Manager of the plaintiff company is authorized to file this suit for and on behalf of the Company vide Resolution dated 05.11.2015 and Copy of Certificate of Incorporation by the company dated 30.01.1995 issued by the Registrar of Companies, NCT of Delhi and Haryana.
2. The brief facts of the case as mentioned in the plaint originally instituted are reproduced here as under:
(i) The defendants had issued a cheque bearing no.219806 M/s Sandhya Finance Ltd. vs Saroj Rani and Ors. Suit No. 535/17 Page 3 of 11
dated 01.03.2015 for a sum of Rs.9,00,000/- drawn on State Bank of India, Hisar, Haryana in discharge of his legal enforceable liability. Defendants no.1 and 2, jointly alongwith their guarantors approached the plaintiff and got financed an amount of Rs.6,00,000/- on 14.06.2014 for business purpose from the plaintiff. The defendants, vide agreement dated 14.06.2014 promised to the plaintiff that they will repay the said loan amount of Rs.6,00,000/- with interest in 12 months at Rs.71,000/- per month beginning from 14 th July, 2014 towards above finance facility. A letter by the defendant - Deepak on stamp paper of Rs.20/- was also addressed to the plaintiff, confirming receipt of the loan of Rs.6,00,000/-.
(ii) In discharge of their partial debt, the defendant no.2 issued cheque bearing no.219806 dated 01.03.2015 of Rs.9,00,000/- drawn on State Bank of India, main branch Hisar, Haryana in favor of defendant no.1. On presentation, the said cheque returned back dishonored by the banker of the defendant with the remarks "Funds Insufficient" as per cheque return memo dated 30.04.2015, upon which the plaintiff sent a legal notice dated 27.05.2015 through his counsel to the defendants through Registered AD / speed post dated 28.05.2015 and the said notice was duly served upon the defendants M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 4 of 11but the defendants failed to pay the amount of the cheque to the plaintiff. Hence, the present suit.
3. The present suit was instituted on 31.05.2017 and on 07.06.2017, summons u/o XXXVII CPC were issued to the defendant which were returned with the report of refusal and was considered deemed service. On 05.01.2018, ld. counsel for the plaintiff submitted that summons in prescribed form no.4 Appendix B CPC issued to the defendant was received back with the report of refusal upon registered cover AD which has been considered deemed service and plaintiff is therefore entitled to decree as per Order XXXVII R 2(3) CPC. Thereafter, vide order dated 29.01.2018, the suit of the plaintiff was decreed for a sum of Rs.9,00,000/- alongwith pendentelite interest @ 11.5% as per prevailing market rate of interest together with cost of the suit.
4. Thereafter, on 22.10.2018 an application under order 37 rule 4 R/W S. 151 CPC was filed on behalf of defendants seeking setting aside of the judgment and decree dated 29.01.2018, stating therein that vide order dated 21.08.2017 the court held that report of refusal on the registered cover AD was deemed service, however, on the ordersheet dated 07.06.2017, it is mentioned that the process not M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 5 of 11received back. On 20.12.2019, arguments on the application u/o XXXVII R 4 CPC were addressed by ld. counsel for defendants by adverting to report upon summons sent through registered post bearing remarks 'refused' on 04.07.2017, judgments in support of their respective contentions with respect to the service / deemed service by way of refusal and grounds of defence mentioned in application for seeking unconditional leave to contest the suit. The said application was allowed and the defendant was directed to file Written Statement within 30 days. On 13.01.2020, Written Statement was filed on behalf of the defendants.
5. Defendants in their Written Statement stated that the plaintiff has not approached the court with clean hands and suppressed a number of material facts by which the suit of plaintiff is not maintainable. It is stated that it is nowhere disclosed in the present suit that the plaintiff has already filed a complaint u/s.138 NI Act at Hisar Court which has already been dismissed by Ld. MM, Hisar Court on 21.01.2017. It is further stated that the plaintiff has also suppressed the fact that the Mr. Amar Kumar Agarwal, who has sent legal notices dated 27.05.2015 and 28.05.2015 to the defendants and has also filed complaint u/s.138 NI Act as an advocate is father of Ms. Preeti Rani, M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 6 of 11who is the Director of the plaintiff's company. It is also averred that Mr. Amar Kumar Aggarwal has allegedly purchased property of defendant no.1 on 14.06.2014 and on the same day, the alleged loan agreement dated 14.06.2014 was entered into between the plaintiff and defendants. It is also averred that Mr. Amar Kumar Aggarwal also got executed an affidavit dated 14.06.2014 whereby he has allegedly purchased the house of defendant no.1. It is further averred that no agreement as claimed has ever been agreed between the plaintiff and the defendants for loan and no loan amount was ever disbursed. It is further averred that the plaintiff had never produced the letter / documents dated 28.06.2014 before the court at Hisar and even after asking about the document, the plaintiff failed to produce any document. It is also averred that the plaintiff has forged the document dated 28.06.2014 only after the plaintiff lost his case at Hisar. It is also averred that the plaintiff has failed to disclose as to how many installments were returned by the defendants since the loan was given to the defendants and has also failed to produce the account statement of the defendants. It is also averred that the cheque in question is not in the name of the plaintiff and the plaintiff is not entitled to present the same and claim the amount. It is also averred that the plaintiff has M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 7 of 11claimed in the plaint that defendants had taken a loan of Rs.6,00,000/- from the plaintiff which was to be paid in 12 monthly installments of Rs.71,000/- per month and the installments started from 14.07.2014. However, the plaintiff is claiming a sum of Rs.9,00,000/- in 7 months which itself suggest that the suit of the plaintiff is false and frivolous and is therefore, not maintainable. It is stated that on 30.04.2015, the cheque was returned unpaid with the reason '99.Alteration require drawers authentication' and plaintiff has forged the memo dated 30.04.20515. It is further stated that the plaintiff has not filed any document showing that the legal notice was served upon the defendants.
6. On 04.04.2022, ld. counsel for the plaintiff submitted that the plaintiff does not want to file replication and no admission-denial was done by both the parties.
7. On the basis of pleadings of the parties, the following issues were framed vide order dated 04.04.2022:
(I) Whether plaintiff is entitled for the decree of recovery of Rs.9,00,000/- alongwith interest in his favor and against the defendants, as prayed for? OPP.
M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 8 of 11
(II) Relief.
8. Thereafter, the matter was fixed for plaintiff's evidence. On 22.08.2022, both the parties stated that they want to settle the matter and the matter was referred to Mediation Centre for 12.09.2022 at 02.00 PM. On 19.12.2022, the matter was received back from Mediation Centre as 'not settled' and an application for substitution of AR of the plaintiff company alongwith Board of Resolution was filed which was allowed and amended memo of parties alongwith list of witnesses were filed which were taken on record. The defendants did not appear despite several opportunities for appearance, hence vide order dated 23.02.2023, the defendants were proceeded ex parte.
9. On 23.02.2023, PW Sh. Rajender Kumar was examined as PW-1 and tendered his affidavit by way of evidence Ex.PW-1/X. He has relied upon the following documents :
(i) Board Resolution dated 01.06.2018 Ex.PW-1/1 (OSR).
(ii) Certificate of Incorporation dated 30.01.1995 Ex.PW-1/2 (OSR).
(iii) Extracts of MOA (containing 06 pages) Ex.PW-1/3 (OSR).
(iv) List of Directors as on 01.01.2014 Ex.PW-1/4 (OSR).
(v) Certified copy of cheque dated 01.03.2015 amounting to Rs.9 M/s Sandhya Finance Ltd. vs Saroj Rani and Ors. Suit No. 535/17 Page 9 of 11
lakhs Ex.PW-1/5.
(vi) Certified copy of bank return memo dated 30.04.2015 Ex.PW-
1/6.
(vii) Certified copy of legal notices dated 27.05.2015 and 28.05.2015 (02 pages) Ex.PW-1/7 (colly).
(viii) Certified copy of postal receipts dated 28.05.2015 Ex.PW-1/8 (colly).
(ix) Loan agreement dated 14.06.2014 Ex.PW-1/9 (OSR).
(x) Letter dated 28.06.2014 Ex.PW-1/10 (OSR).
His cross examination was recorded as NIL as defendant was already proceeded ex parte. Thereafter, vide separate statement of AR of the plaintiff company, PE was closed and the matter was fixed for final arguments.
10. I have heard the final arguments and perused the record. In the evidence led by the plaintiffs, the averments in the plaint have been reiterated. The testimony of the Plaintiff has remained unchallenged as the Defendants never cross examined the Plaintiff. There is no reason for this Court to disbelieve the story of the Plaintiff as narrated in the evidence. The documents i.e. cheque dated 01.03.2015, legal notices dated 27.05.2015 and 28.05.2015 and loan M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 10 of 11agreement dated 14.06.2014 corroborate the story of the plaintiff and there is no reason to disbelieve the same in absence of any cross- examination of the Plaintiff and in the absence of any defence set up by the defendants. There is no reason to disbelieve the case of the plaintiff especially as the testimony has remained unchallenged by the defendants whose defence was struck off.
11. On the basis of oral evidence as well as the documentary evidence led on behalf of the plaintiff, this Court finds on a preponderance of probabilities that the plaintiff has been successful in proving his case against the Defendants.
12. I find that the Plaintiff is entitled to a decree of recovery of Rs. 9,00,000/- along with interest. The Plaintiff has claimed an interest of 24% per annum, however, I find that the claim of 24% per annum is excessive. Therefore, the claim of the plaintiff on account of interest @ 24% per annum is disallowed. The plaintiff is granted interest @ 6% per annum from the date of institution of the suit till date of decree. The issues are, therefore, decided in favour of the Plaintiff and against the Defendants.
13. Relief: In view of the aforesaid discussion, suit of the plaintiff is decreed in favour of the Plaintiff and against the M/s Sandhya Finance Ltd. vs Saroj Rani and Ors.
Suit No. 535/17 Page 11 of 11Defendants for a sum of Rs. 9,00,000/- along with interest at the rate of 6% per annum from the date of institution of the suit till date of decree. Cost of the suit is awarded in favour of the plaintiff.
14. Decree sheet be drawn up accordingly.
15. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2023.07.25
15:39:27
+0530
Announced in the open court (Sh. Divyang Thakur)
On 25.07.2023 ADJ-03/South West
Dwarka / New Delhi