Komol Ghose & Another v. Annabelle Pereira & Another

Kailash Gambhir, J.

1. The plaintiffs have filed the present suit against the defendants for recovery of Rs. 20,49,145 along with pendent lite and future interest @ 18% per annum. Initially, the suit was filed by the plaintiffs against defendant Nos. 1 to 4 but later on the plaintiffs also impleaded Mr. Edwin Pereira as defendant No. 5. Defendant Nos. 1 to 4 were proceeded ex parte vide order dated 5.4.2010 while defendant No. 5 was proceeded ex parte vide order dated 21.3.2012.

2. Defendant No. 2 is the brother of defendant No. 1 and defendant No. 3 is the younger sister of defendant No. 1. Defendant No. 4, M/s. Bella Vista Hotels Pvt. Limited, is a company incorporated under the Companies Act, 1956 and defendant Nos. 1, 2, 3 and 5 are Directors of defendant No. 4 Company.

3. The case of the plaintiffs as set out in the plaint in nutshell is that Plaintiff No. 2 and defendant No. 1 both resided as co-tenants at J-11, Jangpura Extension, New Delhi from 1971 to 1991. They both worked for M/s. British Airways. Plaintiff No. 1 came to know about defendant No. 1 through plaintiff No. 2 on her occasional visits to New Delhi from USA. As per plaintiffs, defendant No. 1 left for Goa in 1991 while plaintiff No. 2 continued to stay at the above address till 1994 and, thereafter, she moved to I-21, Jangpura Extension, New Delhi where she lived with her sister, plaintiff No. 1.

4. According to the plaintiffs, in September 1995, defendant No. 1 visited Delhi to pay condolence to the plaintiffs on sudden death of their brother and during her said visit, defendant No. 1 offered to the plaintiffs a duplex Villa in Miramar Goa. The said offer was immediately accepted by the plaintiffs and accordingly, plaintiffs started paying through instalments to the defendants towards purchase of the said Villa for a sum totallinguptoRs. 20,49,145with effect from 30.11.95 to 30.6.1998. As per the plaintiffs, the first installment of Rs.6,93,944was paid by the plaintiffs to the defendants by way of cheque, while remaining amounts were paid in cash. As per the plaintiffs, an amount of Rs.2 lacs was paid by plaintiff No. 1 on 1.3.96; Rs.3,50,000 on 1.10.96; Rs.2,50,000 on 18.3.97; Rs.1,00,000 on 28.2.98; Rs.1,00,000 on 3.3.98; Rs.1,00,000 on 4.4.98; Rs.75,000 on 30.5.97; Rs.75,000 on 30.6.97 and Rs.1,00,000 from 1995-1998.

5. As per the plaintiffs, for all these years, defendant No. 1 went on misrepresenting the plaintiffs about the construction of the said Villa which was only partly constructed and was never handed over to the plaintiffs and after a long wait and losing all hopes of getting possession of the said flat, plaintiffs requested the defendants to pay back their money along with interest. Accordingly, various letters were exchanged between the parties and from time-to-time defendants kept on acknowledging the said amount paid by the plaintiffs to them with the promise to pay back those amounts to the plaintiffs along with interest.

6. According to the plaintiffs, on 24.7.2009, defendant No. 1 wrote to the plaintiff No. 2 requesting her to lend her a further sum of Rs. 50,000 to meet the expenses for some ongoing litigation,thereby, again reiterating her assurance of either giving a flat in Goa or returning the debt amount to plaintiff No. 1 after selling the said flat. As per the plaintiffs, on 26.8.2009, plaintiff No. 1 in reply to the above letter, wrote to defendant No. 1 refusing to lend any further money but changed her mind later andvide letter dated 5.9.2009 to defendant No. 1 agreed to lend her an amount of Rs. 50,000 provided defendant No. 1 came forward to acknowledge the total debt she owed to the plaintiffs till that date. Accordingly,vide letter dated 19.9.2009, defendant No. 1 made an acknowledgement whereby she clearly stated that she owed an amount of Rs 25 lacs including interest to plaintiff No. 1 and Rs. 5 lacs to plaintiff No. 2.

7. It is the case of the plaintiffs that despite acknowledging the said debt and making fresh promises, the defendants failed to pay the said principle amount of Rs.20,49,145 along with interest @ 18% p.a. from 30.11.1995 till the date of actual realization of the said amount.

8. It is also the case of the plaintiffs that all these defendants conspired together with dishonest intentionsto deprive the plaintiffs of their said money.Defendant No. 5 is impleaded by plaintiffs on the ground that he happens to be the brother of defendant Nos. 1 to 3 and one of the Directors in defendant No. 4 Company. Plaintiffshave also alleged that in fact, defendant No. 5 is in real control of defendant No. 4 Company including all its assets.

9. Counsel for the plaintiffs has also placed reliance on Section 25(3) of the Indian Contract Act, 1872 in support of his contention that the suit filed by the plaintiffs is within limitation. Contention raised by the Counsel for the plaintiffs was that through letter dated 19.9.2009, defendant No. 1 made a fresh promise to pay the said time-barred debt to the plaintiffs and, therefore, with the said promise made by defendant No. 1, the plaintiffs are entitled to recover the said amount from the defendants even though the said debt might not have been acknowledged by the defendants within the prescribed period of limitation.

10. I have heard Counsel for the plaintiffs and given my anxious consideration to the arguments advanced by him.

11. Defendant Nos. 1 to 4 were proceeded ex parte vide order dated 5.4.2010 while defendant No. 5 was proceeded ex parte vide order dated 21.3.2012.

12. Ex parte evidence was led by the plaintiffs through their own witnesses. PW-1 and PW-2 in their evidence have proved copy of Certificate of Incorporation of defendant No. 4 company as Ex. I, copy of Annual return of defendant No. 4 company as Ex. II, copy of Articles of Association of Defendant No. 4 Company as Ex. III, copy of Memorandum of Association of defendant No. 4 company as Ex. IV, copy of the notice from the District Court, Goa received by the plaintiffs as Ex. V, a detailed chart showing the payments made by the plaintiffs as Ex. VI, a copy of the demand draft dated 18.3.1997 as Ex. XI, a true typed copy of the letter dated 24.6.1999 as Ex. XVII, a true typed copy of the letter dated 31.8.2003 as Ex. XX1, copies of the charges related to defendant No. 4 company as Ex. XXXI, a receipt dated 30.11.1995 for a sum of US$ 20,000 paid by cheque, drawn in favour of defendant No. 2 towards purchase of the flat,as Ex. PW1/7, receipt dated 1.12.1995 fora total sum of Rs. 8,99,145 for the first and second installments, signed by defendant No. 2 as director of defendant No. 4 company, as Ex. PW1/9, a receipt dated 1.10.1996 foran amount of Rs.3,50,000, signed by the defendant No. 2 as the director of defendant No. 4 company, as Ex. PW 1/10, receipts dated Feb, 1998, 30.3.1998 and 30.4.1998 for a sum of Rs. 1 lac each, signed by defendant No. 1 as a director of defendant no. 4 company, as Ex. PW1/12, Ex. PW1/13 and Ex. PW1/14 respectively, receipt for the months of May and June, 1998 for a sum of Rs. 75,000 each, signed by defendant No. 1 as director of defendant No. 4 company, as Ex. PW1/15, letters dated 5.6.1999, 2.7.1999 and 30.8.1999 as Ex. PW1/16, PW1/18 and PW1/19 respectively, receipt dated 30.8.1999 for a sum of Rs. 18 lacs, signed by defendant No. 1, as Ex. PW1/19(colly), letters dated 16.9.1999, 10.10.2003, 2.1.2004, 13.1.2004, 29.6.2008, 2.6.2009 and 24.7.2009 as Ex. PW1/20, PW1/22, PW1/23, PW1/24, PW1/25, PW1/26 and PW1/27 respectively, true typed copy of the letter dated 26.8.2009 as Ex. PW1/28, letter dated 5.9.2009 signed by defendant No. 1 on 19.9.2009 as Ex. PW1/29, copy of defendant No. 1s letter dated 19.9.2009 as Ex. PW1/30, letter dated 12.1.2009 from defendant No. 1 to plaintiffs as Ex. PW1/32, letter dated 7.12.2009 from defendant No. 1 to plaintiff No. 1 as Ex. PW1/33, letters dated 7.1.2010 and 18.1.2010 from defendant No. 2 to plaintiff No. 1 as Ex. PW1/34 and PW1/35 respectively and lastly, letter dated 6.2.2010 from defendant No. 2 to the Counsel of the plaintiffs as Ex. PW/ 36.

13. Additional evidence was also led by the plaintiffs after the impleadment of defendant No. 5. In the additional evidence, PW-2 has deposed that defendant No. 5 is one of the Directors of defendant No. 4 Company and he is in actual control of the affairs and assets of the said company.

14. The deposition of these two witnesses remained unchallenged and un-rebutted as none of the defendants came forward to cross-examine the said witnesses. The defendants have also not challenged the averments made by the plaintiffs in the plaint and, therefore, the same also remained uncontroverted.

15. For bringing the present suit within the prescribed period of limitation, Counsel for the plaintiffs placed reliance on Section 25(3) of the Indian Contract Act, 1872 based on the promise made by defendant No. 1 through her letter dated 19.9.2009. I find merit in the submission of Counsel for the plaintiffs considering the fact that defendant No. 1 through her letter dated 19.9.2009 has not only acknowledged the past debts that she owed to the plaintiffs but has made fresh promise to pay the said debts.The plaintiffs are thus entitled to the benefit of the period of limitation in terms of sub Section (3) of Section 25 of the Indian Contract Act. The suit filed by the plaintiffs is therefore clearly within the limitation period.

16. Inthe light of the above, the plaintiffs are entitled to recovery of the claimed amount of Rs. 20,49,145 along with pendente lite and future interest @ 18% p.a. from 19.9.2009 till the date of actual realization of the said amount.

17. Accordingly, a decree for a sum of Rs. 20,49,145 along with pendente lite and future interest @ 18% p.a. from 19.9.2009 till the date of actual realization of the said amount is passed in favour of the plaintiffs and against the defendants. Costs of the suit are also awarded in favour of the plaintiffs and against the defendants.

18. Decree sheet be drawn up accordingly.