RAJ KUMAR MAHESHWAI Vs. JYOTI GUPTA & ORS.

JUDGEMENT

(1.) PLAINTIFF has field the present suit for recovery of Rs. 1,20,69,545/ - along with the interest @ 12% per annum from the date of institution of the suit till realization. In this case by order dated 27.03.2008 suit qua defendants No. 2 and 3 has already been dismissed for want of cause of action, without prejudice to the contentions taken by the plaintiff before the criminal court. The defendant No. 1 was proceeded ex parte and thereafter an ex parte decree was passed on 25.07.2008. Subsequently on an application (I.A. No. 6328/2009 under Order 9 Rule 13 CPC) filed by the defendant, this court by an order dated 21.10.2011 set aside the ex parte decree and granted 30 days time to the defendant to file the written statement. Appeal filed against the aforesaid order by the plaintiff has been dismissed. Despite the time having been granted by this court, no written statement has been filed till date.

(2.) ON 18.01.2012 right of the defendant to file the written statement was closed by the Joint Registrar in the presence of defendant No. 1, who had appeared in person. None is present on behalf of defendant No. 1 today, neither the written statement has been filed. Accordingly, defendant is proceeded ex parte.

(3.) AS per the plaint, plaintiff handed over jewellery worth Rs 90,50,145/ - to the defendant No. 1. Besides the amount of Rs 90,50,145/ -, plaintiff has claimed Rs. 30,19,400/ - as interest accrued on the amount, till the date of institution of the suit. As per the plaint the plaintiff filed a complaint against the defendants, on the basis of which FIR No. 755/2004 was registered on 30.12.2004, and all the defendants were arrested. At the time of institution of the suit the defendants No. 2 and 3 were granted bail, whereas the defendant No. 1 was in Jail in connection with aforesaid case. Defendant No. 1 was served with the summons of the suit in jail and she appeared in custody before the court on 11.01.2008 and sought time to file the written statement. Thereafter, neither the defendant No. 1 appeared before Court in person or through counsel, nor filed the written statement and vide order dated 27.03.2008 was proceeded ex parte. It may be noticed that on the file of this court a handwritten letter dated 7.05.2008 of defendant No. 1, forwarded to this court through Superintendent, Central Jail, Tihar by which defendant No. 1 has requested for a date after 29.08.2008, as by that time she was expecting to be released. After passing the order dated 27.03.2008, by which defendant No. 1 was proceeded ex parte, plaintiff led ex parte evidence and examined himself as PW -1 and his father (Sh.Hari Prasad Maheshwari) as PW -2.