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2012 DIGILAW 492 (HP)

Bal Krishan Rawat v. Kewal Ram Sharma

2012-09-04

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, J.: Plaintiff is an agriculturist. Defendant has been working as a Fruit Commission Agent. He has business relations with the plaintiff. The defendant approached the plaintiff in the apple season in the year 2004, seeking financial help in connection with his business. The plaintiff acceded to his request and advanced a sum of Rs.15,00,000/- (Rupees fifteen lakhs) to the defendant. The defendant at the relevant time was running his business at Chandigarh as Fruit Commission Agent. He received a sum of Rs.15,00,000/- (Rupees fifteen lakhs) from the plaintiff. The defendant utilized the aforesaid money for the promotion of his business. The defendant assured the plaintiff to repay the aforesaid amount received by him from the plaintiff after the apple season was over. However, the defendant did not repay the amount received by him from the plaintiff. On 27th June, 2005, the defendant acknowledged the receipt of the aforesaid amount from the plaintiff and agreed to repay the same in three equal installments of Rs.5,00,000/- (Rupees five lakhs) as under: (a) First installment of Rs. 5,00,000 (Rupees five lakhs) in the month of October, 2005. (b) Second installment of Rs. 5, 00, 000/- (Rupees five lakhas) in the month of October, 2006. (c) 3rd and last installment of Rs.5,00,000/- (Rupees five lakhs) in the month of October, 2007. 2. The defendant has also agreed that in case any of the installments was not paid on the due date, the entire outstanding amount would carry an interest @ Rs.18% per annum. 3. The defendants, despite the execution of agreement, dated 27th June, 2005, did not re-pay the amount. The first installment fell due in the month of October, 2005. Though the defendant has assured to pay the first installment by October, 2005, but the same was not paid. The second and third installments were also not paid to the plaintiff. Thereafter, the defendant agreed to repay the amount after the commencement of apple season. However, he failed to keep his promise. Thereafter, a legal notice was served upon the defendant, calling upon him to pay the entire amount with interest @ 18% per annum within a period of 30 days. However, despite the receipt of notice, the defendant did not pay the amount to the plaintiff alongwith interest. It is in these circumstances, the plaintiff has filed the present suit. 4. The notice was issued to the defendant. However, despite the receipt of notice, the defendant did not pay the amount to the plaintiff alongwith interest. It is in these circumstances, the plaintiff has filed the present suit. 4. The notice was issued to the defendant. The defendant has put in appearance through Ms. Anita Dogra, Advocate. The defendant has prayed for four weeks’ time to file the written statement on 19th August, 2009. The same was not filed. The defendant again sought four weeks’ time for filing the written statement on 09.10.2009. Four weeks’ further time was granted for filing written statement on 11.11.2009. However, despite three opportunities granted to the defendant on 19.08.2009, 09.10.2009 and 11.11.2009, the defendant has not filed the written statement. The last opportunity of eight weeks was granted to the defendant on 14.12.2009 to file the written statement, subject to costs of Rs. 1100/-. Ms. Anita Dogra, learned counsel appearing on behalf of the defendant has filed an application bearing O.M.P. No. 100 of 2010, seeking permission of this Court to withdraw her power of attorney. The same was allowed on 26.03.2010 and the defendant was proceeded ex parte. Thereafter, the plaintiff’s evidence was recorded. 5. Since the defendant was proceeded ex parte on 26.03.2010, no issues were framed, but, the Court is of the considered view that the following issues arises for determination in this case: 1. Whether the plaintiff is entitled to a decree Rs. 23,10,000/- alongwith interest @ 18% per annum from the date of filing the suit till its realization? OPP 2. Relief. 6. Mr. Ajit Jaswal, learned vice counsel for the plaintiff has argued that a sum of Rs. 15,00,000/- (Rupees fifteen lakhs) was paid to the defendant. However, the defendant has not paid the amount as agreed by him on 27th June, 2005. He has not paid the installments in the month of October, 2005, October, 2006 and October, 2007 despite the execution of agreement dated 27th June, 2005. The defendant has not paid the amount even after a legal notice was served upon him to pay the amount. 7. I have heard Mr. Ajit Jaswal, learned vice counsel for the plaintiff at length. 8. For the reasons to be recorded hereinafter while discussing the issues, my findings to the issues are as under: Issues No. 1 : Yes. Relief : The suit is decreed as per operative portion of the judgment. 7. I have heard Mr. Ajit Jaswal, learned vice counsel for the plaintiff at length. 8. For the reasons to be recorded hereinafter while discussing the issues, my findings to the issues are as under: Issues No. 1 : Yes. Relief : The suit is decreed as per operative portion of the judgment. REASONS FOR FINDINGS ISSUE NO. 1 9. Plaintiff has appeared as PW-1. He knew the defendant personally, being neighbour. The defendant has raised a loan of Rs.15,00,000/- from him in the year 2004. Defendant is a Fruit Commission Agent and is working at Chandigarh. He has raised the loan to expand his business. The loan raised was to be returned within a period of one year, but he has not repaid the same. He visited him and entered into an agreement with him on 27th June, 2005 vide Ex. PW-1/A. According to him, the first installment of Rs. 5 lacs was to be paid in the month of October, 2005, second installment of Rs. 5 lacs was to be paid in the month of October, 2006 and the third installment of Rs. 5 lacs was to be paid in the month of October, 2007. He has recognized his signatures on Ex. PW-1/A. The agreement was executed between him and the defendant at the instance of defendant. Shri Vipan Lal and Shri Parma Nand were the marginal witnesses to agreement, dated 27th June, 2005, Ex. PW-1/A. The defendant has not repaid any amount to him despite agreement, dated 27th June, 2005. He got a legal notice, dated 19.05.2008, served upon the defendant through his Advocate vide Ex. PW-1/B. According to him, he has received the same. A copy of receipt is Ex. PW-1/C. Copy of the Registered A.D. is Ex. PW-1/D and copy of the U.P.C. receipt is Ex. PW-1/E. 10. Shri Vipin Lal has appeared as PW-2. He knew the parties. The agreement dated 27th June, 2005, Ex. PW-1/A was entered into between the plaintiff and defendant. He has appeared as a marginal witness to the same. He has recognized his signatures on Ex. PW-1/A. This is the oral as well as documentary evidence led by the plaintiff. 11. What emerges from the pleadings and the evidence led by the plaintiff, is that he has advanced a sum of Rs.15,00,000/-(Rupees fifteen lakhs) to the defendant by way of loan. He has recognized his signatures on Ex. PW-1/A. This is the oral as well as documentary evidence led by the plaintiff. 11. What emerges from the pleadings and the evidence led by the plaintiff, is that he has advanced a sum of Rs.15,00,000/-(Rupees fifteen lakhs) to the defendant by way of loan. This amount was to be paid within a period of one year. The defendant had been promising to repay the same. The plaintiff and defendant have entered into an agreement on 27th June, 2005 vide Ex. PW-1/A, whereby the defendant has agreed to repay the loan amount in three installments of Rs. 5 lacs each in the months of October, 2005, October, 2006 and October, 2007. However, the defendant has not paid the amount by way of installments to the plaintiff. A legal notice has also been served upon the defendant. The plaintiff has duly proved the copy of notice Ex. PW-1/B. He has also proved the copy of receipt Ex. PW-1/C, copy of registered A.D., Ex. PW-1/D and copy of U.P.C. receipt Ex. PW-1/E. The execution of agreement, Ex. PW-1/A has been duly proved by PW-1 and PW-2. 12. The cause of action has arisen to the plaintiff initially on 27th June, 2005 and thereafter on October, 2006, October, 2007 and on 19.05.2008, when the legal notice was served upon the defendant. The suit is within limitation. The plaintiff has affixed the proper Court fee of Rs. 25,660/- for the purpose of Court fee and jurisdiction. The suit has been filed within the pecuniary and territorial jurisdiction of this Court. The defendant has agreed to pay the amount by way of three installments, failing which, he was liable to pay interest @ Rs. 18% per annum as per agreement dated 27th June, 2005, Ex. PW-1/A. Thus, the plaintiff is entitled to a sum of Rs. 23,10,000/- alongwith future interest @ Rs. 18% per annum from the date of filing of the suit till its realization. Accordingly, the issue is decided in favour of the plaintiff and against the defendant. RELIEF 13. In view of the observations and discussions made hereinabove, the suit of the plaintiff is decreed with costs. A decree for a sum of Rs. 23,10,000/- alongwith future interest @ Rs. 18% per annum from the date of filing of the suit till its realization is passed in favour of the plaintiff and against the defendant. RELIEF 13. In view of the observations and discussions made hereinabove, the suit of the plaintiff is decreed with costs. A decree for a sum of Rs. 23,10,000/- alongwith future interest @ Rs. 18% per annum from the date of filing of the suit till its realization is passed in favour of the plaintiff and against the defendant. The plaintiff is entitled to costs throughout. The plaintiff has also placed on record the counsel fee certificate vide order dated 27.06.2011 Decree sheet be prepared accordingly. The pending application(s), if any, also stands disposed.