CS (OS) 1470/2007 Page 1 $~10 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 18.05.2010 + CS (OS) 1470/2007 M/S METCALFE PROPERTIES PVT. LTD. ..... Plaintiff Through: Ms. Monika Kapoor, Advocate. versus M/S WHITEROCK BUILDERS & COLONIZERS PVT. LTD. ..... Defendant Through: None. CORAM: MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers YES may be allowed to see the judgment? 2. To be referred to Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) % The plaintiff sues the defendant for a money decree in the sum of Rs. 3,27,18,191/- with 24% interest per annum from 28.03.2005. Summons in this case had been issued on 14.08.2007. The defendant was served despite which it chooses not to enter appearance and contest the proceedings. The defendant was accordingly set down ex parte. 2. The plaintiff contends to being Private Limited Company incorporated under the Companies Act, engaged in the business of developing property as well as buying and selling them. It is contended that the defendant is also a private limited company. CS (OS) 1470/2007 Page 2 3. The plaintiff submits that during the period 28.03.2005 to 24.05.2005 it made payments to the tune of Rs. 2,15,000,00/- (Rs. Two crores fifteen lakhs) to the defendant. The details of such payments, made through the cheques, drawn on the Canara Bank and ICICI Bank are indicated in a tabular form in paragraph-4 of the Suit. The same is extracted below: - Sl. No. Date Cheque No. Bank Name Amount 1 28.03.2005 425960 Canara Bank 20,00,000 2 28.03.2005 678613 ICICI Bank 10,00,000 3 28.03.2005 678615 ICICI Bank 5,00,000 4 28.03.2005 678612 ICICI Bank 10,00,000 5 07.04.2005 084251 ICICI Bank 25,00,000 6 08.04.2005 084255 ICICI Bank 25,00,000 7 08.04.2005 084254 ICICI Bank 30,00,000 8 15.04.2005 869554 ICICI Bank 30,00,000 9 16.05.2005 084253 ICICI Bank 25,00,000 10 24.05.2005 869586 ICICI Bank 35,00,000 4. It is submitted that the payments through the said cheques were given to the defendant based upon the latter’s assurances and representations of its Directors that they would be treated as booking and investment in their (the defendant’s) forthcoming real estate projects. It is stated that the defendant agreed to pay 24% interest per annum on the said amounts. The plaintiff contends that despite repeated demands and calls for return of the money, the defendant did not comply, and defaulted in doing so. 5. The plaintiff states that the defendant in discharge of part of its liability had issued two CS (OS) 1470/2007 Page 3 cheques of Rs. 25 Lakhs each on 10.12.2006 and 15.12.2006. However, when the said cheques presented for encashment, they were received unpaid with the banker’s remarks “funds insufficient”. The plaintiff submits to having contacted the defendant repeatedly for payment of those amounts but to no avail. It relies upon legal notice dated 24.5.2007 and 28.5.2007 (Ex. PW-1/5 and PW-1/9). The plaintiff submits to having preferred a complaint before the Metropolitan Magistrate, Delhi alleging commission of offences. According to the plaintiff, the cause of action arose when the first payment was made to the defendant on 28.03.2005 and that it arose on subsequent dates including the two days when the legal notices were issued. 6. In support of the suit, the plaintiff has relied upon the deposition of Mr. Suresh Poddar who tendered affidavit evidence as Ex.PW-1/A/A. The said witness also exhibited the several documents relied upon. The plaintiff relies upon Ex.PW-1/4A to 4F which are separate notices/advise by the ICICI Bank Ltd. confirming that a total of Rs.2,15,000,00/- was debited to its account towards cheques given to the defendant M/s Whiterock Builders & Colonizers Pvt. Ltd. The plaintiff also relies upon Ex.PW-1/4G, its statement of account maintained by the Canara Bank which reveals that a cheque was issued to M/s Whiterock Builders & Colonizers Pvt. Ltd. and debited by the latter on 30.03.2005. Similarly, two other documents Ex.PW-1/4H and 4I issued by the ICICI Bank reveal that a sum of Rs.25 Lakhs was debited from its (the plaintiff’s) accounts. 7. The legal notices issued to the defendants have been exhibited as PW-1/5 and PW-1/9. In support of the contention that these notices were duly dispatched, the plaintiff relies upon the registered AD receipts which are marked as Ex.PW-1/6, 1/7A, 1/7B, 1/7C, 1/7D and 1/8. Similarly, the legal notice issued to the defendant on 28.5.2007 has been produced as Ex.PW- 1/9. In the deposition, PW-1 states in paragraph-5 that: - CS (OS) 1470/2007 Page 4 That the deponent states that the payment of the above mentioned amount of Rs.2,15,00,000/- (Rupees Two crores fifteen lacs only) was made to the defendant company through its Director, Shri Sukhjinder Singh upon the basis of assurances and representations of Shri Gurjeet Singh and Shri Hardev Singh, directors of the defendant company that the above said amount shall be treated as a booking/investment amount in their forthcoming real estate project would be allotted to the plaintiff at the basic cost price within a period of one year. However, even after passage of a period of one year, no land was allotted to the plaintiff by the defendant.” 8. On a consideration of the material on record, the Court is of the opinion that the plaintiff has established that it had paid a sum of Rs. 2,15,000,00/- to the defendant through various cheques which were debited from its accounts. Although, there is no documentary evidence in proof of the assertion that the amount was to be treated as booking or investment amount and the details as to the real estate project are also not forthcoming, yet the plaintiff’s authorized Director has deposed that the sum was to be paid as consideration as an investment or as a booking in the real estate project of the defendant. The said defendant was also asked to repay the amount through two legal notices which have been exhibited on the record of this Court in the present proceedings. In these circumstances, the plaintiff, in the Court’s considered view, has established entitlement for a decree for a sum of Rs.2,15,000,00/-. 9. So far as the interest @ 24% per annum is concerned, aside from the deposition of the plaintiff through its Director and the averment in the Suit, the Court finds no documentary or any other material in support of the claim. While the plaintiff’s entitlement to the amount may stand established, in the absence of any objective material to say that the amount was towards some commercial consideration and that the parties had agreed upon any rate of interest much less 24%, the grant of such interest would not be justified. At the most, the plaintiff would be entitled to reasonable interest. CS (OS) 1470/2007 Page 5 10. In view of the above conclusions, the Suit is decreed for the sum of Rs.2,15,000,00/- with interest @ 8% per annum pendent lite and future interest; the suit is decreed with costs in these terms; counsel fee is quantified @ Rs.55,000/-. S. RAVINDRA BHAT (JUDGE) MAY 18, 2010 /vd/