Indian Kanoon - Search engine for Indian Law

Delhi District Court

Santosh (Sr.) vs Sampati Trading And Deve on 4 September, 2023

IN THE COURT OF MS. SWATI GUPTA-I, ACJ-CUM-ARC-CUM-CCJ,
 NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI

                                                       CS SCJ No. 1583/17

Santosh
W/o Sh. Ram Chander
R/o A-73, Shyam Vihar Phase-I,
Najafgarh
New Delhi-110043                                             ... Plaintiff

                                     VERSUS

Sampati Trading & Developers Ltd.
Through its authorized signatory
Shri Shanti Swaroop Satija
R/o B-52, Sarita Vihar, New Delhi-110076                     ... Defendant

          CIVIL SUIT FOR RECOVERY OF RS. 2,28,000/-

         Date of institution            : 25.11.2017 (more than 5 years old)
         Arguments heard on             : 21.08.2023
         Date of judgment               : 04.09.2023
         Final judgment                 : Decreed

                          EX-PARTE JUDGMENT

    1.

The present suit has been filed by the plaintiff against the defendant for recovery of a sum of Rs. 2,28,000/- (Rupees Two Lakh and Twenty Eight Thousand Only) alongwith interest pendente lite and future at the rate of 15% per annum alongwith costs.

Brief facts CS No. 1583/17 Page 1 of 6 Santosh Vs. Sampati Trading & Developers Ltd.

2. Brief facts of the present case, as averred in the plaint, are that the plaintiff was approached by the defendant to invest a sum of Rs. 2 lakhs in his business of investment of property trading for one year. Thereafter, the defendant handed over one cheque bearing no. 652225 dated 06.05.2017 for a sum of Rs. 16,000/- drawn on Punjab National Bank, Connaught Circus Branch, to the plaintiff, with the assurance that the same would be honoured. However, on presentation of the said cheque, the same was returned dishonored with remarks 'funds insufficient' vide returning memo dated 09.05.2017. Plaintiff informed the defendant regarding dishonour of the cheque through demand letter dated 23.05.2017 but the defendant did not pay any heed to the request of the plaintiff. Thereafter, defendant again handed over a cheque bearing no. 652227 dated 06.10.2017 for a sum of Rs. 2,12,000/- drawn on Punjab National Bank, Connaught Circus Branch, New Delhi, to the plaintiff. However, the said cheque was also returned unpaid with remarks 'funds insufficient' vide returning memo dated 07.10.2017. Plaintiff again informed the defendant through a demand letter dated 12.10.2017 but the defendant did not pay any amount to the plaintiff. Accordingly, as per the plaintiff, defendant has failed and neglected to make the payment of Rs.

Santosh Vs. Sampati Trading & Developers Ltd.

2,28,000/- to the plaintiff, despite issuance of legal notice and thus, the present suit has been filed. Trial and Evidence

3. It may be noted at this stage that the present suit has been filed under Order 37 CPC, however, vide order dated 08.07.2019, the same was converted into an ordinary civil suit at the request of proxy counsel for plaintiff and husband of plaintiff.

4. Summons were issued to the defendant. Despite due service and entering appearance on various dates, defendant did not care to file any written statement within the statutory period and accordingly, its defence was struck of on 23.07.2022.

5. Matter was listed for PE. The plaintiff examined herself as PW-1, who tendered her evidence by way of affidavit Ex.PW-1/A and relied upon the documents from Ex. PW1/1 to Ex. PW1/9. As none has appeared on behalf of defendant for cross-examination of witness, opportunity to cross-examine the witness was closed vide order dated 25.05.2023. No other witness was examined in ex-parte PE and PE was closed.

6. As none appeared on behalf of defendant, DE was closed vide order dated 02.08.2023 and matter came up for final arguments.

Santosh Vs. Sampati Trading & Developers Ltd.

Arguments and Relief

7. I have heard the final arguments advanced by Ld. Counsel for the plaintiff and carefully perused the record.

8. In the present case, as noted above, the defence of the defendant was struck of for not filing the written statement. Defendant also did not come forward to cross- examine plaintiff's witness or to lead defence evidence or to address final arguments. The plaintiff has inter alia proved on record receipt dated 06.10.2016 showing that defendant received a sum of Rs. 2 lakhs from the plaintiff by way of cheque dated 06.10.2016. The said receipt is Ex. PW1/1. The plaintiff has also proved on record cheque no. 652225 dated 06.05.2017 issued by defendant in favour of plaintiff as Ex. PW1/2; bank memo dated 09.05.2017 as Ex. PW1/3; demand notice dated 23.05.2017 as Ex. PW1/4; speed post receipt dated 23.05.2017 as Ex. PW1/5; cheque no. 652227 dated 06.10.2017 issued by defendant in favour of plaintiff as Ex. PW1/6; bank memo dated 07.10.2017 as Ex. PW1/7; demand notice dated 12.10.2017 as Ex. PW1/8; and speed post receipt dated 13.10.2017 as Ex. PW1/9. The said evidence of PW1 stands unrebutted / unchallenged, as PW1 was not cross-examined by the said defendant. This Court does not find any reason to disbelieve the CS No. 1583/17 Page 4 of 6 Santosh Vs. Sampati Trading & Developers Ltd.

unrebutted testimony of plaintiff/PW-1 recorded on oath in Court. In view of the unchallenged testimony of PW1, documents exhibited/tendered in evidence by PW1 and on the basis of material on record, it may be said that the plaintiff has been able to prove its case against defendant on preponderance of probabilities.

9. In view of the aforesaid discussion, the present suit is decreed in favour of the plaintiff and against defendant. The plaintiff is held entitled for the decreetal amount of Rs. 2,28,000/-. The plaintiff has claimed pendente lite and future interest at the rate of 15% per annum. However, it is settled law that pendentelite and future interest are matters of discretion and considering that the interest at the rate of 15% p.a. is onerous and penal in nature, it is not considered equitable to grant such high rate of interest. Accordingly, simple interest at the rate of 6% per annum is considered just and equitable in the present case. In view of the above, the suit of the plaintiff stands decreed against defendant. Defendant is liable to pay the sum of Rs. 2,28,000/- to the plaintiff alongwith simple interest at the rate of 6% per annum from the date of institution of the suit till its realization.

10. Deficient court-fees, if any, be filed within 10 days from today and decree sheet be prepared accordingly. Costs of CS No. 1583/17 Page 5 of 6 Santosh Vs. Sampati Trading & Developers Ltd.

the suit are also awarded in favour of the plaintiff.

11. File be consigned to Record Room after due compliance.

Announced in the open Court (SWATI GUPTA-I) today i.e. on 04.09.2023 ACJ/CCJ/ARC, NDD, PHC NEW DELHI : 04.09.2023 CS No. 1583/17 Page 6 of 6 Santosh Vs. Sampati Trading & Developers Ltd.