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2013 DIGILAW 868 (MAD)

Prakash Chand Lalwani v. P. Vijayakumar

2013-02-11

R.KARUPPIAH

body2013
JUDGMENT 1. This Civil Suit is filed by the plaintiff and prayed for a decree for a sum of Rs. 70,80,000/- together with interest at the rate of 24% per annum from the date of plaint till the date of realization on Rs. 59,00,000/- and also prayed for the sale of the properties of the defendant described in the schedule and permit the plaintiff to adjust the amounts which are due from out of the sale proceeds after defraying expenses and also prayed for personal decree as against the defendant, including sale of two buses bearing Registration Nos. TN.7.AR.4767 and TN.7.AR.4929 2. The case of the plaintiff is that the plaintiff is carrying on business as Financiers lending money for purchase of vehicles on Hire Purchase and defendant requires finance for purchase of two buses bearing Registration Nos. TN.7.AR.4767 and TN.7.AR.4929 from S.V.R. Tours and Travels, Hyderabad and the defendant sought for loan from the plaintiff a sum of Rs. 30,00,000/- to enable the defendant to pay the balance amount due and take delivery of the buses. Therefore, the plaintiff agreed to advance a loan of Rs. 30,00,000/- on two conditions namely, making the payment of Rs. 30,00,000/-to and in favour of S.V.R. Tours and Travels, Hyderabad and that the defendant sought executed a pro-note for a sum of Rs. 30,00,000/- in lieu of the sum of Rs. 30,00,000/- agreed by the plaintiff in favour of S.V.Tours and Travels, Hyderabad. Therefore, as undertaken by the plaintiff, the plaintiff paid a sum of Rs. 30,00,000/- i.e. Rs. 3,00,000/- by way of cash, Rs. 7,14,750/-, Rs. 9,89,400/- and Rs. 9,95,850/- by way of three cheques dated 13.4.2006 directly to S.V.R.Tours and Travels, Hyderabad and also issued a letter dated 13.4.2006, addressed to the plaintiff. For the above said payment, the defendant, in addition to execute a pro-note he had issued a letter of acknowledgement and accepting the liability for the return of sum of Rs. 30,00,000/- together with interest to the tune of Rs. 18,00,000/- in 30 instalments at the rate of Rs. 1,60,000/- per month. 3. It is further averred in the plaint that on 18.4.2006, the defendant again approached the plaintiff for grant of Rs. 20,00,000/- and the defendant agreed to pay the above said amount and accordingly paid a sum of Rs. 15,00,000/- by way of cheque and the balance amount of Rs. 5,00,000/- by way of cash. 1,60,000/- per month. 3. It is further averred in the plaint that on 18.4.2006, the defendant again approached the plaintiff for grant of Rs. 20,00,000/- and the defendant agreed to pay the above said amount and accordingly paid a sum of Rs. 15,00,000/- by way of cheque and the balance amount of Rs. 5,00,000/- by way of cash. Thereafter, the defendant executed a pro-note on 18.4.2006 acknowledging the above said Rs. 20,00,000/- and the defendant had agreed to pay the interest at the rate of 36% per annum and also created an equitable mortgage by depositing the title deeds, registered as Document No.102 of 2002 before the Sub Registrar, Vadipatti, Madurai District, relating to the immovable properties owned by the defendant. 4. It is further stated in the plaint that the defendant had returned a sum of Rs. 5,00,000/- on 16.5.2006 and another sum of Rs. 5,00,000/- on 29.5.2006. At that stage, when the plaintiff insisted the defendant from making an endorsement of H.P.A.on the R.C. Book, the plaintiff came to know that the defendant had already created an H.P.Agreement with Kotak Mahindra in respect of two vehicles for which the plaintiff had already advanced a sum of Rs. 30,00,000/- in the first instalment and Rs. 20,00,000/- later on, out of which, Rs. 10,00,000/- paid by the defendant. It is further stated that the defendant induced the plaintiff somehow settled the issue and consequently the defendant executed an agreement of liability on 14.6.2008. 5. In pursuance of the above said agreement, the vehicle was handed over to the plaintiff. The defendant had agreed to pay a sum of Rs. 59,00,000/- with subsequent interest thereon and also issued three cheques for a value of Rs. 59,00,000/- namely, Rs. 40,00,000/-, Rs. 6,00,000/- and Rs. 13,00,000/- respectively in favour of plaintiff. 6. It is also stated in the plaint that the defendant had sent a letter dated 24.6.2008 by alleging that the plaintiff had kidnapped the defendant and that the plaintiff had taken the defendant’s signatures in blank papers and to that effect, the defendant had lodged a police complaint in Cr. No. 364 of 2008 and also called upon the plaintiff to return the documents and also requested the plaintiff not to present the cheques or create false liability. No. 364 of 2008 and also called upon the plaintiff to return the documents and also requested the plaintiff not to present the cheques or create false liability. The plaintiff sent a detailed lawyer notice on 7.7.2008, and also informed the defendant that the plaintiff is presenting all the cheques for enhancement, if the amount is not paid within seven days. After information, the plaintiff presented the three cheques for encashment, but the cheques were returned with an endorsement, on the two cheques of the value of Rs. 4,00,000/- and Rs. 6,00,000/- as “Stop Payment” and another cheque Rs. 13,00,000/- returned as “Insufficient Funds”. In the mean time, the defendant sent reply notice dated 14.8.2008, with false contention and to that effect the plaintiff had sent a reply notice dated 18.8.2008. The defendant also sent a re-joinder on 4.9.2008. The plaintiff has taken steps under Section 420 of IPC read with 138 of Negotiable Instruments Act for cheating against defendant also pending for consideration. Therefore, this suit is filed for the principal amount of Rs. 46,00,000/- as on 14.6.2008 and interest Rs. 9,20,000/- at the rate of 24% per annum from 14.6.2008 to 9.4.2009 and Rs. 13,00,000/- Principal amount of as on 14.6.2008. with interest at the rate of 24% per annum from 14.6.2008 to 9.4.2009, totally Rs. 70,80,000. 7. Mr.M.Balaji, learned counsel for the defendant had already filed vakalat but written statement was not filed and the defendant had not chosen either to appear in person or through his counsel, this Court passed order as defendant was called absent and set ex-parte and therefore, the matter was referred to the Additional Master Court No.I, for recording ex-parte evidence. Before Master Court, to prove his claim, the plaintiff himself deposed as P.W.1 and 23 documents were marked as Exhibit P-1 to P-23. 8. Heard the learned counsel appearing for the plaintiff and perused the oral and documentary evidence adduced on the side of the plaintiff. For perusal of the documents reveal that defendant had executed Exhibit P-1 and P-4 Promissory notes for Rs. 30,00,000/- and Rs. 20,00,000/- and also executed Exhibit P-2 and Exhibit P-5 acknowledgement and agreement of liability. Plaintiff has also proved that the defendant had created an equitable mortgage by deposit of title deeds only for second loan of Rs. 20,00,000/-. It is also admitted that the defendant returned a sum Rs. 10,00,000/- (Rs. 30,00,000/- and Rs. 20,00,000/- and also executed Exhibit P-2 and Exhibit P-5 acknowledgement and agreement of liability. Plaintiff has also proved that the defendant had created an equitable mortgage by deposit of title deeds only for second loan of Rs. 20,00,000/-. It is also admitted that the defendant returned a sum Rs. 10,00,000/- (Rs. 5,00,000/- each) on 16.5.2006 and 29.5.2006 to the plaintiff. A perusal of Exhibit P-5 agreement of liability executed by defendant reveals that the defendant has agreed to pay a sum of Rs. 59,00,000/- on 14.6.2008. As rightly contended by the learned counsel appearing for the plaintiff and from the oral and documentary evidence adduced on the side of the plaintiff, it is proved that the defendant has to pay to the plaintiff the above said amount of Rs. 59,00,000/- with interest totalling Rs. 70,80,000/- as claimed in the plaint. 9. But the plaintiff has not proved by reliable oral and documentary evidence regarding the alleged equitable mortgage and deposit of title deeds and the above said fact also not disputed by the learned counsel for the plaintiff. Further learned counsel for the plaintiff submitted that mortgage decree need not be passed and only prayed for money decree. Therefore, the plaintiff is not entitled to mortgage decree as claimed in the plaint and only entitled money decree (i.e.) for recovery of sum of Rs. 70,80,000/- with subsequent interest. 10. In the result, the suit is partly allowed and passed a decree as the plaintiff is entitled to recovery a sum of Rs. 70,80,000/- together with interest at the rate of 12% per annum from the date of plaint till the date of decree and after decree at 6% p.a. on the principal amount of Rs. 59,00,000/-from the defendant and the suit is dismissed in respect of other reliefs sought for by the plaintiff in the plaint. Defendant should pay the proportionate cost to the plaintiff. Suit partly allowed.