1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.2104 OF 1997 M/s. Fortis Financial Services Ltd. ..Plaintiff. Vs. M/s. Rahat Steels Pvt. Ltd. And another ..Defendants. .... Ms. Pooja Kshirsagar i/b Dholakia Law Associates for the Plaintiff. None for the Defendants. .... CORAM : DR. D.Y. CHANDRACHUD, J. 29th June, 2009. P.C. : 1. The suit has been instituted for the recovery of an amount of Rs. 39,43,493.33. The case of the Plaintiff is that in July 1991 the First Defendant requested the Plaintiff to extend a hire purchase facility to acquire equipment and machinery required by the First Defendant for its business. Three hire purchase agreements were entered into respectively on 12th July, 1991, 15th May, 1992 and 17th August, 1992. The hire purchase agreements were executed by the Second Defendant in its capacity as a director of the First Defendant. Post dated cheques 2 were issued by the First Defendant through the Second Defendant some of which were dishonoured for insufficiency of funds. The Plaintiff has instituted criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 which are pending. The First and Second Defendants were convicted by the Metropolitan Magistrate on 26th September, 2006. An appeal was dismissed by the Sessions Court on 28th March, 2007. 2. The Second Defendant has also executed a letter of guarantee dated 12th July, 1991. The suit came to be instituted upon a default by the Defendants in the payment of the outstanding dues. 3. The Defendants were served with the writ of summons, but have failed to enter appearance. By an ad interim order dated 1st July, 1997, the Court Receiver came to be appointed as Receiver of the machinery and equipment, more particularly described in Exhibit D to the Plaint with a direction to take forcible possession thereof and to handover the machinery/ equipment to the Plaintiff. The ad interim order was 3 confirmed on 14th August, 1998. The learned advocate appearing on behalf of the Plaintiff states that the machinery has since been sold. The Plaintiff has tendered an affidavit in lieu of the examination in chief of its witness and a compilation of the original documents containing inter alia the three hire purchase agreements, the letter of guarantee and the memo of dishonour of cheque. In the absence of any contest by the Defendants, the pleadings and the evidence have remained to be controverted. The Plaintiff has duly established its claim on the basis of the evidence on the record. The suit shall accordingly stand decreed in terms of prayer clauses (c) and (f) with the modification that the Plaintiff will be entitled to interest at the rate of 9% per annum on the principal sum from the date of the institution of the suit until payment or realization. *****