Delhi District Court
Ms. Mamta vs Sh. K.Moorthy on 4 April, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 661/13
Unique case ID No: 02405C0311152013
IN THE MATTER OF
Ms. Mamta,
D/o Sh. Suraj Bhan,
R/o H. No. 126, V.P.O Kanjhawla,
Delhi 110081 ... Plaintiff
Versus
Sh. K.Moorthy
(Barber), (Police Training Camp)
Police Colony,
Jharodha Kalan, Najafgarh
Delhi ... Defendant
Date of Institution : 22.10.2013
Date on which judgment was reserved : Not reserved
Date of pronouncing judgment : 04.04.2015
SUIT FOR RECOVERY OF RS. 1 LAKH
JUDGMENT
1. By this judgment I will dispose of the suit filed by the plaintiff for recovery of Rs. 1 lakh against the defendant under the CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 1 of 7 provisions of Order 37 CPC.
2. Brief facts of the case as per plaint are as follows: The defendant is alleged to be a family friend of the plaintiff who had approached the plaintiff for taking a friendly loan and as such at the request of the defendant a friendly loan of Rs. 1 lakh was given by the plaintiff after arranging the same. In discharge of his legally enforceable liability towards the plaintiff, the defendant issued a cheque bearing no. 970971 dated 25.03.2013 for a sum of Rs. 1 lakhs drawn on Axis Bank Limited, Atpar Branch, New Delhi in favour of the plaintiff with the assurance that the same would be honoured on presentation. The said cheque was presented by the plaintiff for encashment through his banker State Bank of India, Kanjhawala, Delhi, however the same was got dishonoured and returned unpaid by his bank with remarks 'Funds Insufficient' vide cheque return memo dated 11.04.2013. The plaintiff, thereafter, served a legal notice of demand dated 29.04.2013 CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 2 of 7 upon the defendant through speed post but the aforesaid amount has not been paid by the defendant to the plaintiff. Thus the plaintiff has filed the present suit for recovery of Rs. 1 lakhs against the defendant under the provisions of 37 CPC on the basis of cheque which is a bill of exchange within the meaning of provisions of Order 37 Rule 1 (2) (a) CPC.
3. Upon receipt of the plaint, summons of the suit for appearance under the provisions of 37 CPC were duly served upon the defendant whereupon the defendant entered his appearance on 02.04.2015 i.e. within the prescribed period of limitation. The defendant has also supplied the address for service of summons of judgment upon him. Subsequently an application was moved on behalf of the plaintiff for issuance of summons for judgment against the defendant under the provisions of Order 37 Rule 3 (4) CPC wherein the plaintiff has reaffirmed the continuation of cause of action. She has specifically pleaded that in her opinion the defendant has no defence to the present suit of the CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 3 of 7 plaintiff. Summons for judgment were accordingly issued to the defendant on his address mentioned in the application putting in his appearance. The defendant has avoided the service of summons upon the aforesaid address. No other address has been furnished by the defendant for service of summons of judgment upon him. A perusal of the file further shows that the summons for judgment sent to the official address of the defendant were duly served by way of affixation on 16.12.2014. The defendant has failed to file any application for leave to defend the suit despite repeated opportunities. It is submitted by counsel for plaintiff that in view of aforesaid facts, the plaintiff is entitled to a decree in sum of Rs. 1 lakh alongwith pendente lite and future interest @ 12 % per annum and cost of the suit in her favour and against the defendant.
4. I have heard the submissions made on behalf of plaintiff and have perused the record. In my considered opinion, the present suit being a suit based upon cheque which is a bill of exchange CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 4 of 7 within the meaning of provisions of Order 37 Rule 1 (2) (a) of CPC is squarely covered under the provisions of Order 37 CPC. The summons of the suit were duly served upon the defendant who had put his appearance and furnished his address for service of summons for judgment upon him. The plaintiff has taken steps on repeated occasions for service of summons on the aforesaid address furnished by the defendant, however, defendant has avoided service of summons upon the aforesaid address though the summons for judgment have been duly served by way of affixation upon the official address of the defendant. Defendant has failed to file any application seeking leave to defend despite service of summons of judgment upon him and despite expiry of prescribed period of limitation of 10 days. The claim of plaintiff of Rs. 1 lakh against the defendant is duly supported by the written documents such as cheque dated 25.03.2013, return memo dated 21.04.2013 and legal notice dated 29.04.2013. All the averments made by the CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 5 of 7 plaintiff in the plaint including the continuation of cause of action in favour of the plaintiff and against the defendant were reaffirmed by the plaintiff in her application for issuance of summons for judgment against the defendant.
5. It has further been reaffirmed by the plaintiff on affidavit that in her opinion, the defendant has got no defence to the suit of the plaintiff. Since the defendant has failed to file the application for leave to defend within the prescribed period of limitation, in my considered opinion, the plaintiff is entitled to the judgment forthwith in terms of provisions of Order 37 Rule 3 (6) (a). As has already been observed all the averments made by the plaintiff in his plaint are deemed to have been duly admitted by the defendant since the defendant has failed to apply for leave to defend. Even otherwise, the claim of the plaintiff is duly supported by documents and the same has been reaffirmed by the plaintiff in affidavit in support of her application seeking issuance of summons for judgment against CS No. 661/13 Mamta Vs. K. Moorthy Judgment dated 04.04.2015 Page no. 6 of 7 the defendant.
6. In view of the aforesaid facts, in my considered opinion, the plaintiff is entitled to a decree in sum of Rs. 1 lakh in her favour and against the defendant. In my considered opinion, ends of justice would be served by awarding pendente lite interest @ 9 % per annum from the date of filing of the suit by the plaintiff till the date of decree . Plaintiff is further held entitled to interest @ 6 % per annum from the date of decree till the date of actual realization of the decretal amount by the plaintiff from the defendant. Cost of the suit as per rules are also awarded in favour of the plaintiff and against the defendant.
7. Decree sheet be prepared accordingly.
Announced in the open court on this 04th day of April, 2015 This order consists of seven signed pages.
(Arun Kumar Garg)
Civil Judge(SW)/Dwarka Courts
New Delhi/04.04.2015 (akn)
CS No. 661/13
Mamta Vs. K. Moorthy
Judgment dated 04.04.2015 Page no. 7 of 7