Fincap Financial v. Euro Cotspin F+

order: Provided that the Company Law Board may, before making any order under this sub-section, give a reasonable opportunity of being heard to the company and the other persons interested in the matter.

(10) Whoever fails to comply with any order made by the Company Law Board under sub-section (9) shall be punishable with imprisonment which may extend to three years and shall also be liable to a fine of not less than rupees fifty for every day during which such noncompliance continues."

¶13Apart from baldly averring that the civil courts' jurisdiction in regard to claims 11 of 13 for return of amounts deposits with companies are barred, the applicant defendant has not sought to substantiate it in any manner. A textual reading of the provision in Section 58-A nowhere bars jurisdiction of this court; such a construction also does not arise out of necessary implication. The position may have altered due to enactment of the Companies (Second Amendment) Act, 2002 and introduction of Section 10-GB. Yet, the Tribunal which has to adjudicate such claims has not been constituted. More importantly, that provision envisages adjudication of such future claims; the amendment does not bar adjudication of pending suits, seeking recovery of the amounts deposited, in terms of Section 58-A. Therefore, this objection, or defense has no merit.

¶14The plaintiff has produced certified copies of the 18 cheques, described in the previous part of the judgment. It had filed a criminal complaint, alleging commission of offences under Section 138 of the Negotiable Instruments Act due to dishonour of the said instruments. The certified copies of the return memos concerned are also filed along with the plaint. The plaintiff avers, in its application filed in 2001, that the originals of those documents were with the trail court; it has therefore sought leave to file and rely upon the certified copies of the said documents. It has however, not produced certified copies of the fixed deposit receipts for the amounts said to be deposited by it; instead, it has relied upon photocopies to say that the defendant took the amounts in fixed deposit 12 of 13 and agreed to pay 14% interest.

¶15In view of the above discussion, the court is of opinion that the grounds raised by the defendant in the application seeking leave to defend do not raise any triable issue. On the other hand, the plaint and documents produced in its support establish that the plaintiff has a justified claim to the extent of Rs. 21,15,068.50. However, its claim for interest is not supported by any valid written agreement, as the original fixed deposit receipts or certified copies of the said documents are not on the record. However, the plaintiff would be entitled to pendente lite and future interest @ 10% per annum. For these reasons, IA 8103/2005 is liable to be dismissed. The plaintiff is entitled to summary judgment for the amount of Rs. 21,15,068.50 (Rupees twenty one lakhs, fifteen thousand and sixty eight, paise fifty only) pendente lite and future interest @ 10% per annum, and costs.

¶16The suit is decreed with costs, in the above terms; let a decree be drawn. DATED: 22nd February, 2008 S. RAVINDRA BHAT, J 13 of 13

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on 11th February, 2008 Date of decision : 22nd February, 2008 FINCAP FINANCIAL CORPORATION LTD. ..... Plaintiff Through Mr. Rajesh Bhardwaj, Mr. Rajeev Ranjan Kumar, Advocates versus EURO COTSPIN LTD. ..... Defendant Through none. CORAM: Mr. Justice S. Ravindra Bhat 1. Whether reporters of local papers may be Yes. allowed to see the judgment.? 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. Mr. Justice S. Ravindra Bhat 1. This is a suit under Order 37 of the Code of Civil Procedure, 1908 seeks recovery of Rs. 21,15,068.50 through a summary judgment, against the defendant. Initially, several defendants were made parties to the proceedings; later all others, save defendant No. 1 1 of were deleted from the array of parties. 2. The facts relevant for the case are as follows. The Plaintiff is a duly registered company under the Companies Act, 1961, having its registered office at 222-223, "Ashirwad', D-1, Green Park, New Delhi – 110 016. The Plaintiff avers that the Defendant company and its officers issued advertisements from time to time from February, 1999, in newspapers and other Dailies including the various Journals, Magazines etc and also printed pamphlets inviting and enticing the public at large to invest in their "Fixed Deposit" scheme for a lucrative and handsome returns on the money invested with the company. 3. That defendants company's Chairman & Managing Director, Directors, Secretary and Principal Officers Directors in the brochure advertised about the various schemes and did propaganda to accumulate the funds by showing and painted a rosy picture about the scheme. It is averred that the defendant secured, from the plaintiff, fixed deposits aggregating Rs. 20,00,000/- (Rupees twenty lakhs only), through receipt numbers. FNO1/DEL/000021, FNO!/DEL/000022 and FNO1/DEL/000023, for Rs.5,00,000/- (Rupees Five Lakhs), Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand) and Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand) respectively dated 1st July, 1999 for one year on an average return of 14% i.e. on a interest rate of 14% per annum. 2 of 4. It is averred that pursuant to acceptance of Fixed Deposits the officers of the defendants company Shri Rajeev Khandelwal and Ghanshyam Gupta signed cheques dated 30th June,2000, which were issued to the plaintiff in discharge of Fixed Deposit amount held by the defendants company. Further to acceptance of the Fixed Deposit the Defendant Company issued various Cheques for discharge of debt and liability towards the interest accrued up-to various dates on the those fixed deposits. The cheques were returned unpaid from the defendant company's bankers. 5. It is averred that all officers including the Chairman, Managing Director, Directors, Secretary of the defendants company at the time of issue of cheques had assured and undertaken to the plaintiff that the said cheques issued pursuant to discharge of the Fixed Deposit liability were good for payment and would be encashed as and when presented on the respective due dates. Details of the said cheques, mentioned in the suit are as below: S.No. Cheque Number Date of Cheque Amount in Rs. 1. 349261 30.06.2000 7,50,000.00 2. 349262 30.06.2000 7,50,000.00 3. 349263 30.06.2000 5,00,000.00 Total Amont 20,00,000.00 S.No. Cheque Number Date of Cheque Amount in Rs. 3 of 1. 032478 01.06.2000 5,945.21 2. 032479 01.07.2000 5,753.42 3. 032490 01.06.2000 8,917.81 4. 032491 01.07.2000 8,630.14 5. 032502 01.07.2000 8,917.81 6. 032503 01.07.2000 8,630.14 7. 032487 01.03.2000 8,054,79 8. 032499 01.03.2000 8,054.79 9. 032475 01.03.2000 5,369.86 10. 032488 01.04.2000 8,917.81 11. 032500 01.04.2000 8,917.81 12. 032476 01.04.2000 5,945.21 13. 032501 01.05.2000 8,630.14 14. 032489 01.05.2000 8,630.14 15. 032477 01.05.2000 5,753.42 Total Amount 1,15,068.50 6. The plaintiff further avers that when the cheques were presented, the collecting bank returne