{"id":148923,"date":"2000-05-26T00:00:00","date_gmt":"2000-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-b-b-patel-vs-nexim-exports-pvt-ltd-and-anr-on-26-may-2000-2"},"modified":"2016-10-08T05:44:46","modified_gmt":"2016-10-08T00:14:46","slug":"shri-b-b-patel-vs-nexim-exports-pvt-ltd-and-anr-on-26-may-2000-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-b-b-patel-vs-nexim-exports-pvt-ltd-and-anr-on-26-may-2000-2","title":{"rendered":"Shri B.B. Patel vs Nexim Exports Pvt. Ltd. And Anr. on 26 May, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shri B.B. Patel vs Nexim Exports Pvt. Ltd. And Anr. on 26 May, 2000<\/div>\n
Equivalent citations: AIR 2001 Delhi 313<\/div>\n
Author: R Chopra<\/div>\n
Bench: R Chopra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 R.C. Chopra, J. <\/p>\n
1. This suit under Order 37 of the Code of Civil Procedure was instituted by the plaintiff against the defendants for recovery of Rs. 24,20,000\/- with costs and interest. Vide orders dated 3.5.1993, the defendant’s application for leave to defend was granted subject to certain conditions.\n<\/p>\n
2. The plaintiff’s case as set out in the plaint, briefly stated, is that the plaintiff is the sole proprietor of M\/s. Nikoleon Brothers. The defendant No. 1 is a private limited company and defendant No. 2 is its Managing Director and a party to the contract. The plaintiff alleged that the plaintiff and defendants were having good business relations and had joined hands in many business deals helping one another. In the month of September, 1988, the defendant No. 2 approached the plaintiff for financial assistance. He asked for a short term temporary loan of Rs. 20 lacs which was to carry interest at the rate of 21% per annum. The defendant No. 2 assured the plaintiff that the loan would be returned on or before 31.12.1988 as his payments from a foreign party were expected before 30.12.1988. The plaintiff agreed to the suggestion and as such, gave two cheques of Rs. 10 lacs each to the defendants which were drawn on Union Bank of India. The cheques were received by defendant No. 2 in terms of the conditions laid in the vouchers. The defendants encashed the said cheques but the amount was not paid back on 31.12.1988 as agreed. The plaintiff raised demands but the defendants kept on giving him false assurances. The plaintiff sent a registered AD letter dated 7.1.1989 calling upon the defendants to pay the amount. A legal notice dated 20.1.1989 was also sent by the plaintiff to the defendants calling upon them to liquidate the loan amount but no payment was made. The plaintiff as such, claimed a sum of Rs. 20 lacs as principal amount and a sum of Rs. 4,20,000\/- as interest thereon from September, 1988 to September, 1989. The plaintiff also claimed costs of the suit and pendente lite and future interest at the rate of 21% per annum from the date of filing of the suit till realisation.\n<\/p>\n
3. The defendants filed a written statement raising preliminary objections that the suit filed by the plaintiff was without any cause of action and based on false, fabricated, tempered with and interpolated documents. It was submitted that the plaintiff had tried to push a “general voucher” as a “receipt voucher” before the Court with an intention to mislead the Court. It was stated that at the time when the defendant No. 2 signed the vouchers only the name of the defendant Company, defendant No. 1, was mentioned. Everything else was added on the vouchers later on. It was stated that defendant No. 2 had signed these general vouchers in good faith when these were not having revenue stamps even. On merits, it was pleaded that the plaintiff may be put to strict proof that the was the sole proprietor of M\/s Nikoleon Brothers. It was denied that the defendants had ever faced any financial crisis or approached the plaintiff for a temporary loan as alleged. It was stated that a cock and bull story had been set up by the plaintiff to show that the payment of Rs. 20 lacs was a loan. It was pleaded that the plaintiff had approached the defendants for helping him in the execution of an export order and in exchange of defendants’ expertise and know-how, had proposed to give them a sum of Rs. 20 lacs as fee. It was submitted that the defendant No. 2 had been doing business in USSR for several years. It was reiterated that the payment of Rs. 20 lacs was made by M\/s. Nikoleon Brothers to defendant No. 1 towards consultancy fee for rendering export know-how and as such, the case as set up regard to the loan transaction, was false. The plaintiff filed a replication to the written statement of the defendants controverting the pleas raised by the defendants and re-asserting the averments made in the plaint.\n<\/p>\n
4. On the pleadings of the parties, following issues were settled on 19.9.1997:\n<\/p>\n
1. Wether M\/s. Nicolian Bros. is a sole proprietorship of the plaintiff, who is authorised to act on its behalf? OPP<\/p>\n
2. Whether the plaint does not disclose any cause of action against the defendants or any of them? OPD<\/p>\n
3. Whether the plaintiff gave any loan of Rs. 20,00,000\/- to the defendants and if so what are the terms thereof including repayment and interest? OPP<\/p>\n
4. Whether the documents bearing dates 3.9.1998 and 24.9.1998 relied upon by the plaintiff have been interpolated and\/or materially altered and subsequently stamped after the same were got signed in blank and if so to what effect? OPD<\/p>\n
5. Whether the amount of Rs. 20,00,000\/- was paid to defendants No. 1 and 2 by way of consultation fee and Advance towards costs in connection with an export order and if so to what effect? OPP<\/p>\n
6. What amount, if any, is the plaintiff entitled to recover from the defendant? OPP<\/p>\n
7. To what rate of pendente lite and future interest, if any, is the plaintiff entitled and on what amount for what period?\n<\/p>\n
8. Relief.\n<\/p>\n
Vide orders dated 28th January, 1998, the following additional issue was framed:\n<\/p>\n
  1A. Whether the loan as allegedly given is money of Mr. B.B. Patel, Proprietor of M\/s. Nicolian Bros. in September, 1988 and if so, to what effect? OPP  <\/p>\n
5. It was also ordered that onus of proving issue No. 5 will be on the defendants.\n<\/p>\n
6. In support of his case, the plaintiff examined PW-1 Shri Mukesh Gupta, an Accounts Officer of the plaintiff, PW-2 Shri Yogesh Jain, Chartered Accountant, PW-3 Shri Suresh Kabadi, a partner of M\/s. Nikoleon Brothers and PW-4, the plaintiff himself. The defendant No. 2 examined himself as DW-1.\n<\/p>\n
7. I have heard learned counsel for the plaintiff and defendant No. 2 in person. I have gone through the pleadings of the parties, documents and evidence on record. My findings on the issues are as under:\n<\/p>\n
 ISSUE NO. 1<\/span><\/p>\n
8. This issue was framed on the basis of the averments made by the plaintiff in para 1 of the plaint to say that he is the sole proprietor of M\/s. Nikoleon Brothers and therefore is capable of suing in the name of the said firm. The defendants denied these averments and asserted that the plaintiff be put to strict proof to establish that he is the sole proprietor of M\/s Nicolian Brothers. In the course of arguments, the defendants have pressed for the dismissal of the suit filed by the plaintiff on the short ground that on the date of the filing of the suit M\/s. Nikoleon Brothers was a partnership concern which was not registered in terms of Section 69 of the Partnership Act and as such the suit is liable to be dismissed.\n<\/p>\n
9. After considering the pleadings of the parties, evidence on record and the submissions made by learned counsel for the parties, it is found that this controversy has arisen merely on account of an unnecessary and uncalled for pleading made by the plaintiff, in para 1 of the plaint, by saying that he is the sole proprietor of M\/s. Nikoleon Brothers which fact is admittedly wrong for the reason that on the date of the filing of the suit M\/s. Nikoleon Brothers was a partnership firm and the plaintiff was not its sole proprietor as averred. The controversy is unnecessary and irrelevant for the purpose for the disposal of the suit for the reason that the pleadings as well as the evidence on record shows that the suit was filed by the plaintiff in his personal capacity and not for and on behalf of partnership firm M\/s. Nikeleon Brothers. Therefore, the question as to whether M\/s. Nikoleon Brothers was a sole proprietorship concern or a partnership firm on the date of the filing of the suit is of no consequences. In fact the plaintiff who was filing this suit in his personal capacity merely described his name and address as the proprietor of M\/s. Nikolean Brothers. He was not at all required to make any averment that he was the sole proprietor of the said firm. The evidence on record shows that at the time of the giving of the alleged loan M\/s. Nikoleon Brothers was the sole proprietor concern of the plaintiff and as such the loan, if any, was a personal loan advanced by the plaintiff himself. The partnership firm which had taken over M\/s. Nikoleon Brothers later had not taken over the actionable right in respect of the said loan and as such it continued to be a personal loan advanced by the plaintiff. The capital account of the plaintiff Ex. PW 2\/1, the balance sheets of the firm Exhibit PW 2\/2 and PW 2\/3 satisfactorily establish on record that after the conversion of M\/s. Nikoleon Brothers from sole proprietary concern to a partnership firm the loan allegedly advanced by the plaintiff to the defendants was not taken over by the partnership firm. Therefore the argument that the suit filed by the plaintiff is liable to be dismissed as on the date of the filing of the suit the firm M\/s. Nikoleon Brothers was not a registered partnership firm cannot be accepted. The suit was filed by the plaintiff who had allegedly advance the loan in question to the defendants and if after the conversion of the firm M\/s. Nikoleon Brothers into a partnership firm the loan was not taken over by the said firm, the right to sue the defendants in respect of the said loan continued to subsist in favor of the plaintiff personally. It cannot be said that the suit could not be filed as on the date of filing of suit the proprietorship concern was not in existence. The plaintiff as its erstwhile sole proprietor was entitled to file the suit as loan was advanced by him as sole proprietor of his concern M\/s. Nikoleon Brothers. He, therefore, could file the suit in his individual capacity. The averment in para 1 of the plaint which was factually incorrect does not affect the maintainability of suit. In case the plaintiff had stated that he was the proprietor of M\/s. Nikoleon Brothers, there would have been no difficulty. Only by the use of word “is”, confusion has arisen which stands cleared through evidence on record. The suit is not hit by Section 69 of Partnership Act. The issue, therefore, stands disposed of by holding that on the date of the filing of the suit M\/s. Nikoleon Brothers was not a sole proprietorship concern of the plaintiff and the suit was not filed by the proprietorship firm M\/s. Mikoleon Brothers. The plaintiff had filed this suit on his own behalf as the alleged loan was advanced by him when he was the sole proprietor of M\/s. Nikoleon Brothers.\n<\/p>\n
 ISSUE NO. 1-a, 2, 3, 4, and 5<\/span><\/p>\n
10. All these issues are being dealt with together as these are interlinked, based on same evidence and the decision of one is likely to affect the decision of other.\n<\/p>\n
11. The case as set up by the plaintiff in the plaint is that in September, 1988 when he was the sole proprietor M\/s. Nikoleon Brothers, the defendant No. 2 approached him for financial help. The plaintiff agreed to advance him a loan of Rs. 20 lakhs on interest @ 21 per cent per annum. On 3.9.1988 the defendant No. 2 received a cheque for Rs. 10 lakhs in favor of his company defendant No. 1 and signed the voucher Ex. PW1\/1. On 24.9.1988 another cheque of Rs. 10 lakhs was issued by the plaintiff to the defendants for which the defendant No. 2 signed the voucher Ex. PW1\/2. According to the plaintiff the defendant No. 2 had requested him for financial assistance by way of a short term loan and had assured that the loan would be returned on or before 31st December, 1988. However, the loan amount was not returned and hence the suit. The defendants plea on the other hand is that the defendant No. 2 had never approached the plaintiff for any financial assistance or short term loan as alleged and infact this payment was made by the plaintiff to the defendants as consultancy fee for rendering export know-how. It is also pleaded that the vouchers Ex. PW1\/1 and PW1\/2 are false, fabricated, tempered with and interpolated. According to the defendants these were “general vouchers” but have been converted into “receipt vouchers”. The defendant No. 2 had signed these vouchers when only the name of the company defendant No. 2 was mentioned. Everything else in these vouchers was added later on. According to the defendants these vouchers were not having any revenue stamp even at the time when defendant No. 2 had signed the same. The revenue stamps were affixed and crossed later on.\n<\/p>\n
12. Coming to the question as to whether plaintiff
\nhad given a loan of Rs. 20 lakhs to the defendants, it
\nis found that according to the averments made in the
\nplaint the defendant No. 2 had approached the plaintiff
\nfor financial assistance in the sum of Rs. 20 lakhs and
\nby issuing two cheques dated 3.9.1988 and 24.9.1988 in
\nfavor of defendant No. 1 the said loan was advanced by
\nthe plaintiff to the defendants. According to the
\nplaintiff the defendant No. 2 alone was known to him and
\nupon his asking only he had advanced this temporary loan
\nto the defendants. It is alleged that while receiving
\nthe two cheque the defendant No. 2 had signed the
\nvouchers Ex. PW1\/1 and Ex. PW1\/2 in which not only the
\namount of loan but the condition relating to the interest @
\n21 per cent per annum was also mentioned. Both these
\ncheques were encashed by the defendants and as such
\nthere remain no dispute about the payment or
\nadvancement of this amount. The averments of the
\nplaintiff in regard to the payment of this loan are
\nsupported not only by PW4, the plaintiff, and PW1 Shri
\nMukesh Gupta, a former Accountant of the plaintiff but
\nby PW 3 Shri Suresh Kabadi also who stated that in his
\npresence defendant No. 2 had admitted that he had taken
\nloan of Rs. 20 lakhs from plaintiff on interest. The
\nbooks of accounts of the plaintiff also supports the
\nplaintiff’s case that it was a loan only and not a
\nconsultancy fee. The defendants in their written
\nstatement did not dispute the receipt of the two cheques
\nof Rs. 10 lakhs each but raised a plea that his amount
\nwas towards consultancy fee paid by the plaintiff to the
\ndefendants in lieu of the know how provided by the
\ndefendants for execution of an export order which the
\nplaintiff had received from Russia. The plaintiff while
\nappearing as PW4 stated on oath that this was a loan
\nonly and denied that this payment was towards any
\nconsultancy fee. Nothing could be brought out in his
\ncross examination to show that the plaintiff had
\nobtained any know how from the defendants for the
\nexecution of an export order. In the cross examination
\nof PW4 it came out that an export order was received by
\nhim from Rushia in November, 1988 only whereas the
\npresent loan was advanced in the month of September,
\n1988. It cannot be believed that much before the
\nreceipt of the export order the plaintiff had paid such
\na heavy amount to defendants merely for obtaining the
\nknow how as to how the export order was to be executed.\n<\/p>\n
No agreement has been pleaded or proved by defendants to
\nsupport their plea that the plaintiff had made this
\npayment for obtaining know how only. This Court is
\nunable to appreciate that a contract involving such a
\nheavy payment was oral only. If the payment was
\nconsultancy fee the defendant No. 2 could have mentioned
\nthis fact in vouchers Ex. PW1\/1 and PW1\/2. The mere fact
\nthat plaintiff had no expertise in the field of the
\nexport of medical equipment does not ipso facto
\nestablish that the plaintiff had taken any help from
\ndefendants. It has come in evidence that the plaintiff
\nhad entered into a partnership with PW3 in connection
\nwith the export order and his new partner has helped him
\nin the execution of the export order. Ex. PW4\/X2 does
\nnot establish any contract between the plaintiff and the
\ndefendants in regard to supply of know how and payment of
\nconsultancy fee. The defendant No. 1 being a company
\ncould not have entered into such an agreement with the
\nplaintiff without a resolution of the Board of
\nDirectors. No such resolution has been proved on record
\nby the defendants to establish their plea that this
\namount was received towards consultancy fee for supply
\nof know how. The defendant No. 2 even while appearing as
\nDW1 did not make any statement in support of this plea
\nand rather raised a totally new plea by saying that this
\namount was paid by the plaintiff to another company
\nknown as M\/s. Maxin Exports Pvt. Ltd. This plea was not
\nonly beyond pleadings but contrary also to the defense
\nraised by the defendants in their written statement that
\nthis amount was paid to them as consideration for supply
\nof know-how. Once the defendants admitted the receipt
\nof the amount of Rs. 20 lakhs from the plaintiff the
\nburden came upon them also to establish their plea that
\nit was a consultancy fee only and not a loan.\n<\/p>\n
Therefore, in view of the evidence on record this Court
\nhas no hesitation in holding that the plaintiff has
\nsucceeded in establishing that in September, 1988 a loan
\nof Rs. 20 lakhs was advanced to the defendants. The plea
\nraised by the defendants that this amount was
\nconsultancy fee towards know-how supplied by them to the
\nplaintiff cannot be accepted as neither there is any
\nevidence on record in support of this plea nor this plea
\nis believable.\n<\/p>\n
13. The next question to be considered by this Court
\nas to who had advanced the loan of Rs. 20 lakhs and to
\nwhom. The plaintiff had not filed this suit on behalf
\nof any firm nor had pleaded that the loan amount was
\nadvanced by any firm to the defendants. According to
\nhim in September, 1988 when the defendant No. 2 had
\napproached him for financial assistance, he was the sole
\nproprietor of M\/s. Nikoleon Brothers and as such the loan
\nof Rs. 20 lakhs was advanced by him to the defendants
\nas the sole proprietor of M\/s. Nikoleon Brothers. The
\ntestimonies of PWs 2, 3 and 4 establish on record that
\nM\/s. Nikoleon Brothers was converted into a partnership
\nfirm in December, 1988 only. PW3 Shri Suresh Kabari who
\njoined the said firm as a partner deposed on oath that
\nthe loan was not advanced by the firm and rightly so
\nfor the reason that in September, 1988 when this loan
\nwas advanced to the defendants M\/s. Nikoleon Brothers was
\na sole proprietorship concern of PW4 only. He rather
\nwent on t add that in his presence the defendant No. 2
\nhad admitted having taken loan of Rs. 20 lakhs from the
\nplaintiff on interest. No suggestion was given to this
\nwitness that the loan was advanced by a partnership
\nfirm. PW2 Shri Yogesh Gupta a Chartered Accountant of
\nthe plaintiff proved on record the certificates
\nEx. PW1\/1, PW2\/2 and PW1\/3 issued on the basis books of
\naccounts of the plaintiff to show that the amount in
\nquestion was advanced by the plaintiff when he was the
\nsole proprietor of M\/s. Nikoleon Brothers. The defendant
\nNo. 2 while appearing as DW1 did not say that the loan
\nwas advanced by any firm. The statement of plaintiff
\nappearing as PW4, that he did not know even the
\ndefendant No. 1 is not a contradiction to his case but a
\nreassertion of the fact that the loan was advanced by
\nhim on the request of defendant No. 2 only though in the
\nname of his company defendant No. 1. In the statement of
\nPW4 details came out to show that the plaintiff knew
\ndefendant No. 2 since long and in course of time the
\ndefendant No. 2 even married the daughter of a friend of
\nthe plaintiff. Therefore, in view of the pleadings of
\nthe parties and the evidence on record, it is
\nestablished on record that the loan of Rs. 20 lakhs was
\nadvanced by the plaintiff himself while he was the sole
\nproprietor of M\/s. Nikoleon Brothers.\n<\/p>\n
14. Regarding the controversy as to whom this amount
\nwas advanced, it is found that in the plaint the
\nplaintiff had clearly and categorically pleaded that the
\ndefendant No. 2 had approached him with a request for
\nloan as he was facing a financial crisis and had asked
\nfor a short term temporary loan of Rs. 20 lakhs which was
\nto carry interest of 21 per cent per annum. The case
\nset up by the plaintiff is supported by the plaintiff
\nhimself as PW4, PW1 his Accountant, PW2 his Chartered
\nAccountant and PW3 Shri Suresh Kabari who became his
\npartner later on when M\/s Nikoleon Brothers was
\nconverted in to a partnership firm. The plaintiff has
\nstated on oath that he had given by loan to defendant
\nNo. 2. He denied the suggestion that the defendant No. 2
\nhad been imp leaded merely in his capacity as the
\nManaging Director of defendant No. 1 and added that he
\nknew defendant No. 2 only and not defendant No. 1 PW1
\nMukesh Gupta who had prepared the vouchers PW1\/1 and
\nPW1\/2 was categorically in his statement that the cheques
\nin question were handed over to defendant No. 2 after he
\nhad signed the vouchers. PW3 also corroborated the
\nplaintiff’s statement by saying that in his presence,
\nthe defendant No. 2 had admitted having taken loan of
\nRs. 20 lakhs from the plaintiff on interest. Defendant
\nNo. 2 appearing as DW 1 did not say that his loan was
\ngiven to defendant No.1 only and rather raised a totally
\nknew plea by saying that this loan was given to some
\nother company know as M\/s. Maxin Export Pvt. Ltd. If
\nthe defendant No. 2 obtained this loan and signed the
\nvouchers Ex. PW1\/1 and PW1\/2 merely on behalf of the
\ncompany defendant No. 1 he ought to have proved on record
\nsome resolution of the company defendant No. 1 resolving
\nto take loan or payment from the plaintiff. This has
\nnot been done. To the contrary the plea raised by the
\ndefendants in their written statement was that it was
\nnot at all a loan but consultancy fee whereas while
\nappearing as DW1, the defendant No. 2 introduced a new
\nplea that his payment was made to some other company
\nand as such there is nothing on record to hold that this
\nloan was not advanced to the defendants as alleged by
\nthe plaintiff.\n<\/p>\n
15. The defendant have raised serious objections in
\nregard to the genuineness and authenticity of the
\nvouchers Exts. PW1\/1 and PW1\/2. It is contended that
\nthese vouchers were only general vouchers but are sought
\nto be proved on record as receipt vouchers. This Court,
\nhowever, is of the considered opinion that in view of
\nthe fact that the payment of amount was through cheques
\nand further in view of the fact that the payments stand
\nadmitted in the written statement the question as to
\nwhether Ext. PW1\/1 and PW1\/2 were general vouchers or
\nreceipt vouchers is of no significance. In fact the
\nrelevance of these vouchers got lost as soon the receipt
\nof Rs. 20 lakhs was admitted by the defendants. The plea
\nthat at the time of signing PW1\/1 and PW1\/2 these were
\nblank cannot be believed for the reason that PW1 has
\ndeposed on oath that these vouchers were filled up by
\nhim and after these had been prepared the defendant No. 2
\nhad signed the same after receiving the cheques.\n<\/p>\n
Nothing could be brought out in his cross examination to
\nfalsify him. No evidence in rebuttal has been produced
\nby the defendants. Defendant No. 2 even while appearing
\nas DW1 did not say that when he signed the vouchers
\nExts. PW1\/1 and PW1\/2 these were not filled up. The
\nburden of proving this assertion was squarely upon the
\ndefendants which they have miserably failed to
\ndischarge.\n<\/p>\n
16. The controversy in regard to the affixation of
\nthe revenue stamps and crossing is also not very
\nimportant for the reason that PW1 admitted that at the
\ntime of preparation of these vouchers revenue stamps
\nwere not available and those were affixed later. The
\nargument of the defendants that the revenue stamps had
\nnot been affixed till after the filing of the suit
\ncannot be accepted for the reason that Along with the
\nplaint itself the plaintiff had filed the photo copies
\nof these vouchers as Annexure A-1 and A-2 in which the
\nphoto copy of the revenue stamps were clearly visible.\n<\/p>\n
Relying upon  Niranjan Singh v. Gurdev Singh<\/a> reported
\nin 1(1997) BC page 45 the defendants argued that since
\nrevenue stamps were affixed on Exts. PW1\/1 and PW1\/2
\nsubsequently the suit must be dismissed. This Court is
\nof the opinion that in view of the admission of the
\npayments by two cheques of Rs. 10 lakhs each the
\nrelevance and importance of Exts. PW1\/1 and PW1\/2 gets
\nlost. Without relying upon these receipts even the
\nCourt has ample evidence on record to hold that loan of
\nRs. 20 lakhs was given to defendants by the plaintiff.\n<\/p>\n
The controversy raised by the defendants in regard to
\nthe manipulation, interpolation, fabrication of Ex. PW1\/1
\nand Ex. PW1\/2 is not at all material and deserves to be
\nrejected.\n<\/p>\n
17. In view of the pleadings of the parties and the
\nevidence on record, this Court is of the considered
\nview that a sum of Rs. 20 lakhs was advanced as loan by
\nthe plaintiff to the defendants as a short term loan on
\ninterest of 21 per cent per annum. There is nothing on
\nrecord to show that the amount of Rs. 20 lakhs was paid
\nby the plaintiff to the defendants by way of consultancy
\nfee. It is proved on record that this loan was advanced
\nby the plaintiff when he was sole proprietor of M\/s.\n<\/p>\n
Nikoleon Brothers and the loan was never transferred to
\nthe partnership firm and continued to remain a
\nactionable claim with the plaintiff. In para 1 of the
\nplaint itself the plaintiff had alleged that the
\ndefendant No. 2 was party to the contract which clearly
\nconveyed that the defendant No. 2 was not signing the
\nvouchers or receiving the cheques merely on behalf of
\ndefendant No. 1. Ex. PW2\/1, the capital account of the
\nplaintiff and Ex. PW2\/2 and PW2\/3, the balance sheets of
\nthe partnership firm, clearly establish on record that
\nthe loan advanced to the defendants was a loan advanced
\nby the plaintiff himself and it had nothing to do with
\nthe partnership firm of the plaintiff which came into
\nexistence towards the end of 1988. In view of the
\nadvancement of the loan and non payment thereof by the
\ndefendants inspite of demands and notices a cause of
\naction had arisen in favor of the plaintiff and against
\nthe defendants. Issues stand disposed of accordingly.\n<\/p>\n
 ISSUE NO. 6<\/span><\/p>\n
18. In view of the decision of the foregoing issues,
\nthe plaintiff is entitled to recover a sum of Rs. 20
\nlakhs as principal amount from the defendants and sum of
\nRs. 4,20,000\/- as interest thereon @ 21 per cent per
\nannum up to September, 1989. The rate of interest was
\nmentioned not only in Exs. PW1\/1 and Ex. PW1\/2 but is
\nsupported by statements of witnesses also and as such
\nthe plaintiff is entitled to claim interest on this
\nrate. The issue stands disposed of accordingly.\n<\/p>\n
 ISSUE NO. 7<\/span><\/p>\n
19. This suit was filed by the plaintiff in the year
\n1989. It is established on record that the defendants
\nhave been contesting this suit on totally false and
\nfrivolous grounds. The plaintiff is, therefore,
\nentitled to pendente lite and future interest on the suit
\namount from the date of the filing of the suit till
\nrealisation. Considering the market conditions and Bank
\nrate of interest during the last decades and the facts
\nand circumstances of the case, this Court is of the
\nconsidered view that the plaintiff should be awarded
\npendente lite and future interest @ 12 per cent per annum
\nfrom the date of the filing of the suit till
\nrealisation. It is ordered accordingly. Issue stands
\ndisposed of.\n<\/p>\n
 RELIEF<\/p>\n
20. In view of the decision of the foregoing issues as
\ndecree in the sum of Rs. 24,20,000\/- with costs is passed
\nin favor of the plaintiff and against the defendants.\n<\/p>\n
The plaintiff is entitled to pendentelite and future
\ninterest @ 12 per cent per annum from the date of the
\nfiling of the suit till realisation. Both the
\ndefendants are held liable jointly and severally.\n<\/p>\n
Decree sheet be prepared.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shri B.B. Patel vs Nexim Exports Pvt. Ltd. And Anr. on 26 May, 2000 Equivalent citations: AIR 2001 Delhi 313 Author: R Chopra Bench: R Chopra JUDGMENT R.C. Chopra, J. 1. This suit under Order 37 of the Code of Civil Procedure was instituted by the plaintiff against the defendants for recovery […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-148923","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShri B.B. Patel vs Nexim Exports Pvt. Ltd. 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