Nirbhay Trehan vs Vijay Bhardwaj and Another

Rajiv Sahai Endlaw, J.—The plaintiff has instituted this suit for recovery of Rs. 25,25,000/- from the two defendants and for recovery of an additional sum of Rs. 5,00,000/- from the defendant No. 2 ICICI Bank, together with interest @ 18% per annum, pendente lite and future and costs. Summons of the suit were issued to the two defendants. It is the case of the plaintiff in the plaint itself that the defendant No. 1 at the time of institution of the suit was in District Prison, Gurgaon being an accused in FIR No. 117/2008 u/s 320 IPC and under Sections 25 and 27 of the Arms Act, 1959 of Police Station Civil Lines, Gurgaon. Though the order dated 18.03.2011 records that the plaintiff had filed an affidavit of service of the defendant no. 1 in jail but no order proceeding ex parte against the defendant No. 1 was made on subsequent dates. In the circumstances, vide order dated 23.08.2011 report was called from the Superintendent of Gurgaon Jail as to whether the summons of the suit had been delivered to the defendant no. 1. A report dated 12.09.2011 was received from the Deputy Superintendent of District Prison, Gurgaon confirming that the defendant No. 1 was lodged in the said jail and the summons of the present suit for appearance on 25.08.2010 and thereafter for 23.02.2012 had been served on the defendant No. 1. In view of the said report, vide order dated 23.02.2012, though no formal order proceeding ex parte against the defendant No. 1 was made but the plaintiff was asked to lead his evidence. In subsequent orders also, the reference is made to the ex parte evidence of the plaintiff. In this view of the matter, the defendant No. 1 is treated to have been proceeded against ex parte on 23.02.2012.

As far as the defendant No. 2 ICICI Bank is concerned, the counsel for the plaintiff, as recorded in the order dated 23.02.2012, is not pressing any relief against the defendant No. 2. The counsel for the plaintiff confirms the said position today also.

The plaintiff has filed his affidavit by way of examination-in-chief which was tendered into ex parte evidence of the plaintiff on 18.12.2012 and closed his ex parte evidence.

It is the case of the plaintiff that the plaintiff had approached the defendant No. 1, carrying on business of property in the name and style of M/s. Vijay and Associates in village Gitarani, Mehrauli Gurgaon Road, for the purpose of acquiring farm land in village Jaunapur, Mehrauli and since the plaintiff himself is a resident of Jammu, he had, as advised by the defendant No. 1, left a sum of Rs. 20,00,000/- with the defendant No. 1 for the said purpose. The said sum of Rs. 20,00,000/- is stated to have bee paid by the plaintiff to the defendant No. 1 vide four banker''s cheques bearing Nos. 101510, 101511, 10512 & 10513 for Rs. 5,00,000/- each issued by the defendant No. 2 ICICI Bank in consideration of the monies drawn from the account of the plaintiff with the said Bank. The plaintiff in his ex parte evidence has referred to the photographs of the said banker''s cheques as Mark ''A'' to ''D''. It is further the case of the plaintiff that the defendant No. 1 was soon thereafter i.e. on 24.03.2008 arrested as aforesaid. The plaintiff in his ex parte evidence has deposed that being under the impression that the banker''s cheques aforesaid would not have been encashed by the defendant No. 1 till then, the plaintiff had first sought release of the said cheques from the Court concerned with the FIR aforesaid against the defendant No. 1 but upon learning that the cheques had already been encashed, has filed the present suit for recovery of the said amount of Rs. 20,00,000/- with interest @ 18% per annum from 05.03.2008 till the institution of the suit. The plaintiff, in his ex parte evidence has also proved a Certificate dated 12.06.2008 issued by the defendant No. 2 Bank confirming the issuance by the defendant No. 2 Bank of the four banker''s cheques in the name of defendant No. 1 from the account of the plaintiff with the said Bank. The said Certificate proved by the plaintiff is Ex. PW-1/A. The said Certificate has also been admitted by the defendant No. 2 Bank.

Needless to state that the aforesaid version of the plaintiff remains unrebutted.

There is no reason to disbelieve the ex parte evidence of the plaintiff.

The suit of the plaintiff against defendant No. 1 is thus decreed for the recovery of the principal amount of Rs. 20,00,000/-. However as far as the claim of the plaintiff for interest for the period prior to the institution of the suit, pendente lite and future is concerned, considering the entirety of the facts and particularly when the defendant No. 1 is lodged in jail, it is deemed appropriate to confine the rate of interest to @10% per annum. The suit for interest is thus decreed at 18% per annum.

The plaintiff shall also be entitled to costs as per Schedule. Decree Sheet be prepared.