(1.) THIS is a suit for recovery under Order XXXVII, CPC. The plaintiff no. 1 and defendant no. 2 are real brothers. Plaintiff no. 2 is their mother. The defendant no. 2, being the brother of plaintiff no. 1 and son of plaintiff no. 2, is stated to be residing in USA and has, therefore, been impleaded as party defendant no. 2 in the present suit only as a proforma defendant. The plaintiffs in this suit, claim recovery of Rs. 24,08,000/- against defendant no. 1. The basis of their claim is a friendly loan of Rs. 14 lakhs given by late shri Joginder Singh Dabas (father of plaintiff no. 1 and husband of plaintiff no. 2) to defendant no. 1 in July, 2003. The defendant no. 1 is alleged to have returned the loan amount of Rs. 14 lakhs to late shri Joginder Singh Dabas by issuing a cheque bearing no. 429204 dated 4th April, 2004 drawn on Canara Bank, Air Force Group insurance Society, Subroto Park, New Delhi. However, the said cheque when presented for collection was returned unpaid with the remarks "insufficient funds" vide Bank Memo dated 25. 05. 2004. The certified copy of the bounced cheque and the bank memo have been placed on record. Late Shri Joginder Singh Dabas who had given loan of Rs. 14 lakhs to defendant no. 1 expired on 14. 12. 2004, but during his life time, he had started proceedings against defendant no. 1 under Section 138 of the Negotiable Instruments act, 1880, which proceedings are stated to be pending against him till date. The defendant no. 1 was duly informed about the bouncing of the cheque vide notice dated 21. 06. 2004 but he has not repaid the loan amount or the interest accrued thereon till the filing of the suit. After the death of Shri Joginder Singh Dabas, the plaintiffs being his legal heirs, have filed the present suit for recovery of Rs. 24,08,000/- under Order XXXVII, CPC against defendant no. 1. The amount claimed in the suit includes interest @ 24% per annum on the loan amount of Rs. 14 lakhs up to the date of filing of the suit.
(2.) IN response to summons for judgment served upon defendant no. 1, the defendant no. 1 has filed his leave to defend application. However, after filing the leave to defend application, nobody has appeared on behalf of defendant no. 1 for the last three consecutive dates. It appears that the defendant no. 1 is not interested in prosecuting his leave to defend application for the reasons best known to him and, therefore, his leave to defend application is dismissed for non-prosecution.
(3.) IN view of the provisions contained in Order XXXVII Rule 2 (3), code of Civil Procedure, 1908, the plaintiffs are entitled to a decree against defendant no. 1 for an amount not exceeding the suit amount since leave to defend application filed on behalf of defendant no. 1 has been dismissed. Upon perusal of the plaint and the documents annexed thereto, I am satisfied that late Shri joginder Singh Dabas (father of plaintiff no. 1 and husband of plaintiff no. 2) had given a loan of Rs. 14 lakhs to defendant no. 1, which has not been returned by him till the filing of the suit. The plaintiffs, being the legal heirs of late Shri Joginder Singh Dabas, are entitled to recover the loan amount of Rs. 14 lakhs from defendant no. 1. The plaintiffs have claimed interest on the loan amount @ 24% per annum, which in my opinion, appears to be exorbitant and on a higher side. The plaintiffs are awarded interest on the loan amount of Rs. 14 lakhs @ 12% per annum simple to be reckoned w. e. f. 01. 08. 2003 till realisation.