IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT No.3164 of 1998 KHETAN INDUSTRIES P. LTD. ..PLAINTIFFS VS. ASHOK KUMAR KHETAN & ANT. .. DEFENDANTS Ms. V.J. Tamhane i/b Mr. R.D.Suvarna for the Plaintiffs None for the Defendants CORAM: DR. D.Y.CHANDRACHUD, J DATE : 27TH AUGUST, 2009 P.C. 1. The suit has been instituted for the recovery of monies. 2. Plaintiff No.1 is a Private Limited Company registered under the Companies Act, 1956. Plaintiff No.2 was the Chairperson of Plaintiff No.1. Defendant No.1 was a Director of Plaintiff No.1 and is the son of Plaintiff No.2. Defendant No.2 is alleged to be a benamidar of Defendant No.1, to whom Defendant No.1 is alleged to have fraudulently and wrongfully paid the monies of Plaintiff No.1. 3. Defendant No.1 was appointed as a Director of Plaintiff No.1 at an Annual General Meeting held on 31st December 1994 and ceased to be a Director with effect from 29th December 1997. The case of the Plaintiffs is that on or about 23rd January 1995, Plaintiff No.1 paid at the behest of Defendant No.1 a sum of Rs.25,00,000/- to CIFCO Finance Ltd., by a cheque dated 23rd January 1995, drawn on Central Bank of India as a non cumulative deposit carrying interest @ 14% p.a., for a period of one year. According to the Plaintiffs, Defendant No.1 colluded with CIFCO Finance Ltd., by instructing the company not to pay the deposit of Rs.25,00,000/- and the interest to the Plaintiffs on maturity. It has been alleged that on 24th June 1995, when Plaintiff No.2 was residing with his daughter, Defendant No.1 came to the residence and forced Plaintiff No.2 to sign 20 blank cheques bearing Nos. 382458 to 382477 of Plaintiff No.1 drawn on the Central Bank of India, under serious physical threat. The Plaintiffs thereupon learnt that, Defendant No.1 had drawn some of the aforesaid cheques in favour of third parties fraudulently and encashed the cheques amounting to Rs. 25,69,268/-. Plaintiff No.2 registered a Criminal case bearing No.385/S/96 against Defendant No.1, in the court of the Presidency Magistrate, 37th Court, Esplanade, for misappropriation and for offences under section 386 read with section 323 of Indian Penal Code. The criminal case is stated to be pending. 4. Central Bank of India informed the Plaintiffs that two cheques dated 26th June and 5th July 1995, were drawn in favour of Defendant No.2 and were encashed by Defendant No.2. The Plaintiffs have stated that, there was no transaction with Defendant No.2 and Defendant No.1 was not entitled to draw the said cheques in favour of Defendant No.2 The case of the Plaintiffs is that Defendant No.1 has colluded with Defendant No.2, who is a benamidar of Defendant No.1. The claim of the Plaintiffs is for the payment of an amount of Rs.95,000/-, being the amount of the cheque dated 26th June 1995, bearing No. 382461 and an amount of Rs.8,400/-, being the amount of the cheque dated 5th July 1995 bearing No.382463. 5. Counsel appearing on behalf of the Plaintiffs states that, Plaintiff No.2 died on 20th January 2002. The name of Plaintiff No.2 on the request of counsel is deleted from the array of parties. In the absence of any contest, the claim which has been made in the suit has not been contoverted. The Plaintiffs have filed an Affidavit in lieu of Examination-in-chief of a Director of the Company and a compilation of the original documents. The suit is decreed in terms of prayer clauses (a) and (b), with the modification that the Plaintiffs will be entitled to interest @ 9% p.a. from the date of the suit until payment or realization. (Dr. D.Y.Chandrachud, J)