SHAILENDRA GARG Vs. K-7 IMPEX PVT LTD

JUDGEMENT

(1.) IA No.14316/2014 filed by the appellant under Order XXXVII Rule 3 of the Code of Civil Procedure, 1908 seeking leave to defend the suit filed by the respondent has been dismissed vide impugned order dated February 16, 2016. The result is the suit being decreed in sum of Rs.1,75,79,000/- (Rupees One Crore Seventy Five Lakh and Seventy Nine Thousand only) together with interest @ 36% per annum from August 13, 2013 (when the notice of demand was sent) till date of filing the suit and pendente lite interest @ 9% per annum on the sum of Rs.1,75,79,000/- (Rupees One Crore Seventy Five Lakh and Seventy Nine Thousand only).

(2.) Highlighting, that to invoke Order XXXVII of the Code of Civil Procedure, the claim has been founded on the plea that loan in sum of Rs.2.2 crores was given by the respondent to the appellant, in tranches, and for which not only receipts were executed acknowledging receipt of the amount but even promissory notes and cheques were executed as collateral securities. In the promissory notes it has been recorded that the sum mentioned therein would be paid with interest @ of 36% per annum. Thus, two documents on which the suit could be brought within Order XXXVII of the Code of Civil Procedure have been specifically referred to. As per the plaint, the respondent, a company registered under the Companies Act, of which Kamal Bajaj is a Director, had at the asking of the appellant, stated to be a known friend of Kamal Bajaj, advanced by way of loan a sum of Rs.2.2 crores to him as under:-

(3.) As per the plaint, while receiving aforesaid sums, the appellant not only executed a receipt but even a promissory note i.e. in all executed six receipts and six promissory notes, dated October 05, 2012, October 18, 2012, November 05, 2012, November 19, 2012, November 20, 2012 and April 30, 2013. The receipts in sum of Rs.50 lakhs, Rs.50, lakhs, Rs.60 lakhs, Rs.28 lakhs Rs.20 lakhs and Rs.12 lakhs acknowledge the loan amount received and the promissory notes record the undertaking to pay the sum mentioned in the receipts together with interest @ 36% per annum. Simultaneously, cheques in same amount were issued by the appellant and at the rear of the promissory note the said fact was noted with further writing that the cheque was as a guarantee. Pleading that the appellant had paid Rs.44.21 lakhs to the respondent, and adjusting the same from the loan amount, the balance loan came to Rs.1,75,79,000/- (Rupees One Crore Seventy Five Lakh and Seventy Nine Thousand only) and the same remained outstanding, the suit was filed pleading further that the cheques were dishonoured on account of either signatures not tallying or insufficient funds or payment stopped. The suit claimed pre-suit interest in sum of Rs.58,65,269/-.