SUDESH MADHOK Vs. LUNAR DIAMONDS LIMITED

JUDGEMENT

(1.) By means of the present judgment, prayer of the plaintiffs to pass a money decree under Order 12(6) CPC against defendant Nos.2 and 3 in the suit is being heard and disposed of. Plaintiffs filed the subject suit for recovery of Rs. 1,31,07,607/- on the ground that at the request of the defendant No.1 moneys were advanced to defendant No.2 and for which both the defendant Nos.1 and 2 stood as co-obligants by signing the documents including the promissory note and a receipt. The method of advancing the moneys was that a Bill of Exchange was drawn by defendant No.2 on defendant No.1, and this Bill of Exchange was discounted by the plaintiffs by advancing a sum of Rs. 1 crore. The plaint thereafter makes averments with respect to the defendant No.1 paying an amount of Rs. 25 lacs and consequently the principal balance would be reduced to Rs. 75 lacs. There are averments in the plaint with respect to a mortgage having been created in favour of the plaintiffs by the defendant Nos.1, 3, 4 and 5 of the property bearing No.10-H, Vandana Building, Tolstoy Marg, New Delhi-110001 for securing the moneys advanced. The suit plaint in addition to claim of the principal amount of Rs. 75 lacs also claims interest @ 18% per annum and prays for a mortgage decree under Order 34 CPC to be passed in favour of the plaintiffs and against the defendants (viz defendant Nos.1,3,4 and 5) with respect to the mortgaged property.

(2.) At the outset, I must clarify that today learned counsel for the plaintiffs sought only a limited money decree against defendant Nos.2 and 3 to the suit and did not claim a decree against the defendant no. 3 under Order 34 CPC. The other aspects with respect to whether or not a mortgage was created of the Vandana Building property or whether the said property was in fact transferred to the plaintiffs in discharge of the debt as pleaded by the defendants in the written statement or the issues of whether the subsequent purchasers of this property who have filed the I.A. No.1243/2012 are the owners of the property; and if so under what terms and conditions as to any prior rights in the property of the plaintiffs, being disputed questions of facts would require issues to be framed and evidence to be led by the parties on such issues and thus such aspects are not being dealt with in the present judgment.

(3.) A reading of the plaint paragraphs 3 to 5 shows that by discounting of the Bill of Exchange the plaintiffs paid the amount of Rs. 1 crore. The Bill of Exchange of Rs. 1,03,84,000/- was drawn in favour of the plaintiffs by the defendant No.2 and accepted by the defendant No.1. There is included a component of interest in this figure of Rs. 1,03,84,000/- payable by the defendant Nos.1 and 2 to the plaintiffs inasmuch as admittedly the principal loan amount was Rs. 1 crore. Para 5 of the plaint refers to a deed of guarantee dated 13.2.1996 executed by defendant No.3 in favour of the plaintiffs.