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2016 Supreme(Del) 1188
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Lakshmi Builders - Plaintiff
Versus
Devinder Lakra - Defendant
CS(OS) 1366/2015
Decided On : 03-03-2016
Mr. Vikas Tiwari, Advocate
Mr. R.S. Rana & Ms. Monika Rana, Advocates
The court emphasized the acknowledgment of debt and liability through the promissory note and the defendant's solemn statement, disregarding technicalities of promissory note requirements and limitations.
Headnote:
Order XXXVII CPC - Recovery Suit - Section 138 of the Negotiable Instruments Act - Punjab Registration of Money Lenders Act, 1938 - [SUMMARY]
Fact of the Case:
The plaintiff filed a suit for recovery of Rs.2.5 Crores along with interest and costs. The defendant sought leave to defend the suit, claiming that the promissory note was not valid, the suit was barred by limitation, and the plaintiff was not a registered money lender.
Finding of the Court:
The court found the defendant's defense to be frivolous and dismissed the application for leave to defend. The court decreed the suit for the principal amount along with interest and costs. The court also granted attachment before judgment of the defendant's properties.
Issues: Validity of promissory note, limitation, applicability of Punjab Registration of Money Lenders Act, 1938
Ratio Decidendi: The promissory note, though not meeting the requirements of a promissory note under the Negotiable Instruments Act, was considered an acknowledgment of debt and liability. The suit was not barred by limitation as the cause of action arose from the dishonour of cheques and the defendant's solemn statement to repay the amount. The plaintiff was not considered a money lender under the Punjab Registration of Money Lenders Act, 1938.
Final Decision: The suit was decreed for the principal amount with interest and costs, and attachment before judgment of the defendant's properties was granted.
Vipin Sanghi, J.
I.A. No. 16564/2015
1. This application has been moved by the defendant under Order XXXVII Rule 3(5) CPC to seek leave to defend the present suit filed by the plaintiff as a summary suit under Order XXXVII CPC.
2. The case of the plaintiff, as made out in the plaint, is that the defendant used to seek short term financial assistance from the plaintiff to meet his business related requirements. In all, the defendant borrowed a sum of Rs.2,50,00,000/- from the defendant from time to time in the following manner:
a) Rs.33 Lacs in Cash on 31.12.2010
b) Rs.15 Lacs by way of RTGS on 01.06.2012
c) Rs.20 Lacs in Cash on 23.06.2012
d) Rs.10 Lacs by way of Cheque No.703784 on 28.08.2012
e) Rs.50 Lacs by way of Cheque No.703796 on 29.08.2012
f) Rs.50 Lacs by way of Cheque No.703797 on 29.08.2012
g) Rs.32 Lacs by way of Cheque No.703798 on 29.08.2012
h) Rs.40 Lacs in Cash on 30.08.2012.
3. On 03.09.2012, the defendant acknowledged/ admitted his liability and agreed to re-pay the said amount to the plaintiff. He executed a promissory note undertaking to pay the said amount on 03.09.2012. Apart from executing the promissory note, the defendant also issued two post-dated cheques dated 29.10.2012 drawn on Central Bank of India, Connaught Circus, New Delhi bearing Nos.074805 and 074806 for Rs.1 Crore and Rs.1.50 Crore respectively in favour of the plaintiff and also undertook that the said cheques shall be honoured upon presentation on the due date. This undertaking was recorded in the promissory note itself. The defendant had also stated in the promissory note dated 03.09.2012 that if the defendant fails to make payment of the amount on the due date, he shall personally handover the possession of his office bearing No.501-502 constructed on a plot admeasuring 400 sq. yards falling in Khasra No.339, Village Deedarpur, Delhi. In respect of the said property, the defendant also executed an agreement to sell dated 29.08.2012 in favour of the plaintiff’s proprietor – Mr. Vinod Sharma as a collateral security.
4. The further case of the plaintiff is that the loans were advanced by the plaintiff by himself incurring overdraft in his account with Vijaya Bank. The payments were made by the plaintiff either by cheque or through RTGS, except some payments which were made in cash, as noticed hereinabove.
5. The plaintiff further stated that when the aforesaid two cheques were presented for payment on 29.10.2012, the same were returned unpaid by the defendant’s bank on 30.10.2012 on account of insufficient funds. On 07.11.2012, the plaintiff issued a legal notice to the defendant calling upon the defendant to make payment of Rs.2,50,00,000/-, but to no avail.
6. Consequently, the plaintiff initiated a criminal complaint under Section 138 of the Negotiable Instruments Act in the Court of the learned CJM, Gurgaon. The defendant was summoned in those proceedings. On 05.03.2014, the learned JMIC, Gurgaon, inter alia, recorded the statement of the defendant/ accused under Section 313 Cr.P.C. After the statement of the accused/ defendant was recorded, the defendant undertook before the learned JMIC, Gurgaon to repay the amount of Rs.2.5 Crores in five equated installments of Rs.50 Lakhs each to the plaintiff. As per the said statement/ promise, the first installment of Rs.50 Lakhs was due and payable on 15.04.2014. However, the defendant did not make payment of any of those installments.
7. The plaintiff further points out that the defendant/accused did not appear before the learned Magistrate, and consequently, he was declared Proclaimed Offender vide order dated 17.07.2014. A First Information Report bearing FIR No.446/2014 under Section 174 A IPC was registered against him on 21.07.2014. Four properties of the defendant/accused were also attached under Section 83 Cr.P.C. in order to secure his presence.
8. In this background, the plaintiff has filed the present suit for recovery under Order XXXVII CPC. The plaintiff has sought recovery of Rs.2.5 Cr
