Hima Kohli, J.@mdashThe matter was passed over on the first call as none was present for the defendant. Even on the second call, none is present for the defendant. Leave to defend has also not been filed by the defendant.
2. The plaintiff has instituted the present summary suit under the provisions of Order 37 of the CPC against the defendant for recovery of a sum of Rs. 26,22,000/- along with interest thereon, claimed @ 12% per annum. Summons for appearance were issued in the present suit to the defendant, vide order dated 29.4.2008. Appearance was entered by the defendant by filing an application being IA No. 6521/2008 under Order 37 Rule 3(1) CPC. Vide order dated 30.5.2008, summons for judgment were directed to be issued to the defendant, returnable on 4.8.2008.
3. On 4.8.2008, the suit was renotified for 29.8.2008. On 29.8.2008, the Joint Registrar recorded that the summons issued to the defendant have been received back with the report of refusal on 8.7.2008. It was further observed that leave to defend application has not been filed by the defendant. Same is the position today.
4. It is the case of the plaintiff that the in October 2006, the defendant approached the plaintiff and offered to render services of procuring fabrication orders worth Rs. 22.80 crores for the plaintiff, against payment of service charges. Parties executed an Agreement on 6.11.2006, whereunder the plaintiff issued cheques for Rs. 11.40 lacs in favour of the defendant, for procuring the orders worth Rs. 22.80 crores in its favour. It was also agreed that in case the defendant fails to procure the orders worth the aforesaid amount, he shall return the amount taken in advance, to the plaintiff and the plaintiff would be entitled to encash the two post dated cheques for Rs. 1.40 lacs and Rs. 10 lacs issued in this regard by the defendant to secure the payment made by the plaintiff.
5. It is the case of the plaintiff that it paid four amounts to the defendant totaling to Rs. 22,90,000/-. It is further stated in para 11 of the plaint that the plaintiff paid a sum of Rs. 1.40 lacs in cash to the defendant on 19.10.2006. A cheque for Rs. 10.00 lacs was issued by the plaintiff in favour of the defendant on 10.11.2006, a sum of Rs. 50,000/- was paid to the defendant on 30.11.2006, and finally a cheque for Rs. 11.00 lacs was issued by the plaintiff in favour of the defendant on 28.12.2006. Against the aforesaid amounts received by the defendant, the defendant issued three post dated cheqeus in favour of the plaintiff, totaling to Rs. 22.40 lacs as detailed in para 12 of the plaint.
6. After taking the aforesaid amount of Rs. 22.90 lacs from the plaintiff, the defendant did not take any steps for procuring any orders. As a result, the plaintiff sought refund of the advance amount paid to the defendant in terms of the agreement dated 6.11.2006. Further, in terms of Clause 7 of the agreement, the plaintiff presented the aforesaid three post dated cheques issued by the defendant in favour of the plaintiff, for encashment after expiry of 5 months from the date of the agreement as stipulated in clause 7 thereof. The aforesaid three cheqeus were returned by the bankers of the defendant under three memos ,all dated 4.6.2007, with the note that the amounts were unpaid on account of �insufficient funds�. The three memos issued by the bankers of the defendant, namely, ICICI Bank Ltd. are enclosed at pages 38 to 40 of the documents. The Debit Advice dated 5.6.2007 issued to the plaintiff by its banker, Syndicate Bank, is placed at page 41 of the documents. Immediately thereafter, the plaintiff issued a Regd. AD notice dated 8.6.2007 to the defendant, demanding the amounts payable under the aforesaid cheques. The defendant duly replied to the aforesaid notice issued by the plaintiff, vide reply dated 23.6.2007, a copy of which is placed at page 43 of the documents. Perusal thereof shows that the defendant has not denied the transaction and rather, he sought two months time to issue fresh cheques to the plaintiff.
7. Counsel for the plaintiff states that despite the aforesaid assurances given by the defendant, he failed to make good his promise and repay the amount of Rs. 22.40 lacs to the plaintiff, thus, compelling the plaintiff to institute the present suit, as also contemporaneously file proceedings against the defendant, u/s 138 of the Negotiable Instruments Act.
8. In view of the aforesaid averments made in the plaint and the documents placed on the record, which remain unrebutted, the plaintiff is entitled to grant of a decree in its favour. Accordingly, the suit is decreed in favour of the plaintiff for a sum of Rs. 22.40 lacs, the amount covered under the three cheqeus issued by the defendant in favour of the plaintiff, in terms of the consideration arrived upon in the Agreement dated 6.11.2006. The aforesaid amount shall carry simple interest @ 9% per annum from the date of the institution of the suit, till realization. The decree shall be drawn up accordingly.
The suit as also the pending applications are disposed of.
