R C DATTA Vs. RAJIV ANAND

JUDGEMENT

(1.) This order will dispose of application of the defendants under Order 37 Rule 3(5) read with Section 151 CPC for leave to defend the suit.

(2.) Facts in brief for disposal of the application are as follows: The plaintiff filed suit under Order XXXVII CPC for recovery of Rs.5,67,240/- with pendente lite and future interest, pleading that he is a retired army officer; defendant No.2 is a retired Air Commodore, from Indian Air Force and defendant. No.l is son of defendant No.2, who is a doctor. The defendants knew the plaintiff for the last more than 30 years. The defendants represented to the plaintiff, that defendant No.l was proposing to establish a "Tabe Treatment Clinic in Hong Kong" under the aegis of a Company "Tabe Treatment Clinic Hong Kong. Ltd."; that they had good relations and rapport with principals of the company; that they would form a company called "Tabe Treatment Clinic Hong Kong Ltd.", in which defendants were to hold unit upto 50% shares; that total share holding of the defendant in the company would be equivalent to US $ 1,00,000; and that they were looking for an associate, who coulcl financially assist them in opening and operating the said clinic. On these representations the plaintiff agreed to take 10% equity in the said company. The defendants assured the plaintiff that share certificate of the company would be issued in his favour, and that the investment being made by him would be completely safe. They personally stood surety for the same. It was represented that in the eventuality of defendants failing to issue share equivalent to 10% of the authorised capital of the said company, the amount of Rs.3,26,000/- would be returned with interest. The plaintiff, as required, on 13.6.1992 paid in cash Rs.3,26,000/- to them. The defendants issued receipt for the same. The Receipt was executed by defendant No.1, in his personal capacity and on the tacit assurance of defendant No. 2. Defendant No. 1 also Issued a cheque bearing No.272793 dated 13.6.1992, for Rs.3,26,000/- drawn on Citibank, N.A., Delhi in favour of the plaintiff in support of his assurance. It is also pleaded that this amount was 10% share capital of the company and was equivalent to US $ 10,000.00. The defendants failed to issue shares as promised, despite repeated requests pleading that in the eventuality of their failure, plaintiff would be entitled to the principal amount along with Interest @ 24% per annum and the amount was fully secured. The defendants failed to pay the amount. After- waiting for almost three years, plaintiff filed the above said suit on 07.7.1995 for recovery of Rs.5,67,24Q/- along with interest with effect from 13.6.1992, till the filing of the suit. After service of summons under Order XXXVII, the defendants entered appearance and filed the application seeking leave to defend and contested the suit.

(3.) I have heard learned counsel for parties and have been taken through the record.