SHAMIM AHMED Vs. KABHAIYA LAL SETH

JUDGEMENT

(1.) This suit has been filed under Order XXXVII of the Code of Civil Procedure, 1908 for the recovery of Rs. 10,00,000.00 alongwith interest from the date of the institution of the present proceedings till the realisation thereof at the rate of 18% per annum.

(2.) The plaint discloses that the defendant has claimed to be the owner of land in Village Begumpur, New Delhi and on this representation had entered into an agreement for sale of a portion thereof at the rate of Rs. 2,000.00 per sq. yd. In furtherance of this agreement a sum of Rs. 2,00,000.00 was paid by the plaintiff to the defendant in cash on 4.12.1994 together with a further sum of Rs. 5,00,000.00 on 4.4.1995 as well as another sum of Rs. 10,00,000.00 . The averments in the plaint are, therefore, that a total sum of Rs. 17,00,000.00 had been paid. Upon verification it was learnt that the title of the defendant in respect of the suit property was defective and accordingly in part discharge of his liability two cheques bearing Nos. 052346 and 052347 dated 7.3.1996 for Rs. 5,00,000.00 each drawn on Bank of India, Pahar Ganj, Delhi were issued in the name of the plaintiff by the defendant. The plaintiff was further assured by the defendant that the remaining sum of Rs. 7,00,000.00 would also be paid back. However, on presentation the two cheques were dishonoured with the Banker's remark "insufficient funds". Upon the dishonour of these cheques a complaint under Sections 138/142 of the Negotiable Instruments Act was filed by the plaintiff and is still pending adjudication. Since the sum of Rs. 10,00,000.00 is based on these dishonoured cheques the claim is restricted to this amount and interest is claimed at the rate of 18% per annum which is stted to be the market rate.

(3.) Summons of the suit were issued in Form No. 4 under Order XXXVII of the Code of Civil Procedure, 1908. As stated by the defendant in a letter addressed to the Joint Registrar of this Court he received the summons through Superintendent Jail, Central Jail No. 2, Tihar, New Delhi on 11.12.1998. This letter as well as its supporting affidavit has been attested on 5.1.1999. The summons clearly informed the defendant that he was required to cause appearance on his behalf to be entered within ten days from the service i.e. by 22.12.1998. Even if the letter dated 5.1.1999 mentioned above is treated as an application for entering appearance, it was beyond the stipulated time. This being so the provisions of Order XXXVII, Rule 2(3) would come into effect. The defendant has not filed any application for condoning the delay in entering appearance. The allega- tions in the plaint, therefore, shall be deemed to have been admitted.