ANJANI TECHNOPAST LTD & ORS Vs. SHUBH GAUTAM

JUDGEMENT

(1.) Present appeal has been filed by the appellants under Section 96 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'the Code') read with Section 10 of Delhi High Court Act, 1966, against the judgment dated 11.01.2018 passed by a Single Judge of this Court in CS (OS) No.66/2016.

(2.) The brief facts of the case are that the respondents had instituted a suit under the provisions of Order XXXVII of the Code for recovery of Rs. 4,38,00,617/- along with pendente lite and future interest at the rate of 24%, per annum. The suit was based on a loan agreement dated 24.2010 by which the appellants had borrowed Rs. 2,50,00,000/- for a period of two months. Appellants no.2 and 3 in the suit, executed deeds of guarantee to secure the loan. The appellants had also furnished post-dated cheques for the repayment of loan amount. The cheques on presentation were dishonoured with the remarks 'insufficient funds'. The respondent thereafter filed complaints under Sections 138, 141 and 142 of the Negotiable Instruments Act. Meanwhile, parties entered into an amicable settlement under which the appellant agreed to settle the matter with the respondent and offered to pay Rs. 3,22,02,660/- along with pendente lite interest and future interest at the rate of 24%, per annum, till realization. Deed of compromise dated 31.8.2013 was executed and a post-dated cheque was handed over to the respondent, which was dishonoured with the remark 'insufficient fund'. This settlement was also not honoured by the appellants. As the settlement was not honoured, the respondent filed a suit for recovery under Order XXXVII of the Code of Civil Procedure for Rs. 4,38,00,617/-. Even before the High Court, parties entered into a settlement on 23.12016. This settlement was also not honoured by the appellants. When the matter came up for hearing before the Single Judge on 10.1.2018, counsel for the appellants sought an adjournment. The matter was adjourned to 11.1.2018 making it clear that no further adjournment would be granted on the next date. On 11.01.2018, the suit was decreed in the absence of any application seeking leave to defend.

(3.) Learned counsel for the appellants submits that an application seeking leave to defend along with an application seeking condonation of delay was filed by the appellants but the same was not on record. It is contended that the learned Single Judge should have adjourned the matter to enable the appellants to trace the application seeking leave to defend, which was filed by him as far back as on 5.12.2016 along with the application seeking condonation of delay in filing the application seeking leave to defend.