SYED SAEEDUDDIN NASIR, J.--- The plaintiff has filed the present suit under Order XXXVII, C.P.C. for injunction and recovery of Rs.75,153,850/- upto 05.07.2012 with cost of funds with the following prayers:
(a) "Permanently restrain the defendants their agents, attorneys, assignees and representatives from selling the Plot bearing No.6- 7, Sector 21, Korangi Industrial Area, Karachi;
(b) Attachment of plot bearing No.6-7, Sector 21, Korangi Industrial Area, Karachi;
(c) A decree to be passed jointly and severally against all the defendants in the sum of Rs.75,153,850/- along with all other expenses, cost etc. to the plaintiff company;
(d) Defendants to be restrained from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing or dealing with their assets;
(e) The decretal amount be ordered to be realized both by execution of personal decrees against the defendants or through attachment and sale of the personal assets (movable and immovable) of the defendants and if required against the person of the defendants through their arrest/detention in civil prison;
(f) Cost of funds from the date of default till realization of all amounts;
(g) Cost of the suit;
(h) Any other relief (s) this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. The brief facts of the case are that the plaintiff being a public limited company carries the business of supplying textile goods in Pakistan under the name and style of M/s. SAMIN Textile Limited, whereas the defendant is the Chief Executive Officer of M/s. Muhammad Farooq Textile Mills Limited, carrying on business of textile in Karachi. In the ordinary course of business, the defendant had purchased textile goods on credit in the sum of Rs.11,658,014/- from the plaintiff company through various sale contracts. It was agreed that for the payment of the amount, the plaintiff will issue 35 to 40 days' post-dated cheques in advance before delivery and inspection and any rejection/ short length will not be acceptable after 10 days from the receipt of goods and without inspector's visit. The plaintiff pursuant to the terms of the aforesaid sale contracts, dispatched the textile goods purchased by the defendant and the said textile goods were received by the defendant company. The defendant for payment of the aforesaid amount of Rs.11,658,014/- issued 14 cheques bearing Nos. (1) 0202828 dated 11.01.2010 for Rs.938,150/- (2) 0202830 dated 12.01.2010 for Rs.1,268,750/- (3) 0202829 dated 12.01.2012 for Rs.848,572/- (4) 0202840 dated 22.01.2010 for Rs.881,283/- (5) 0202841 dated 22.01.2010 for Rs.872,900/- (6) 0202843 dated 26.01.2010 for Rs.1,688,032/- (7) 0202845 dated 26.01.2016 for Rs.972,187/- (8) 0202898 dated 23.01.2010 for Rs.607,655/- (9) 0202844 dated 26.01.2010 for Rs.679,198/- (10) 0202848 dated 01.02.2010 for Rs . 474 , 050/- (11) 0202851 dated 18.02.2010 for Rs .488,000/- (12) 0202849 dated 01.02.2010 for Rs.938,842/-
(13) 0202852 dated 18.02.2010 for Rs.907,030/- and (14) 0202862 dated 19.02.2010 for Rs.93,365/- totaling to Rs.11,658,014/-. On due dates, when the above mentioned cheques were presented to the concerned bank for encashment, the same were dishonoured and returned to the plaintiff with the bank note/endorsement as "Insufficient funds". Photocopies of the cheques return memo are annexed with the plaint as annexure "P/4". The plaintiff made an immediate recourse to the defendant company and in consequent thereof, the defendant promised to settle the outstanding liability, however, the defendant had failed to honour its promise. Consequently, the plaintiff served a legal notice dated 06.12.2010 upon the defendant but the defendant did not respond to the same.
Thereafter, the plaintiff had initiated criminal proceedings against the defendant before the civil Court, Lahore. The plaintiff came to know that defendant is selling the subject property and plaintiff has no other asset or property of the defendant except the subject property for execution of the decree for recovery of its outstanding dues. It is further averred in the plaint that on account of non-receiving the payment in time, the plaintiff has suffered huge loss of Rs.4 crores. The plaintiff is entitled to recover Rs.3,495,836/- as cost of funds from the date of default i.e. 11.01.2010.
3. Learned counsel for the plaintiff inter alia contends that in the ordinary course of business the defendant had purchased textile goods on credit in the sum of Rs.11,658,014/- from the plaintiff company through various sale contracts and it was agreed that for the. payment of the amount, the plaintiff will issue 35 to 40 days post-dated cheques in advance before delivery and inspection and any rejection/sort length will not be acceptable after 10 days from receipt of goods and without inspector's visit; that the defendant for payment of the aforesaid amount issued cheques drawn on Habib Bank Limited, the details of which are mentioned in para-8 of the plaint; that when the plaintiff presented the said cheques to the defendant's bank for encashment, the said cheques were returned to the plaintiff by the defendant's bank marked as dishonored due to "FUNDS INSUFFICIENT". These facts were brought to the notice of the defendant vide legal notice dated 06.12.2010 but neither the defendant paid the said amount nor gave any reason for nonpayment of the cheque amount by their bank; that the plaintiff repeatedly approached the defendant requesting them to pay the said amount but he neglected and/or declined to pay the aforesaid sum. She further submits that the applications filed by the plaintiff for condonation of delay and for leave to defend the suit are liable to be dismissed. At the end of her arguments, the learned counsel for the plaintiff submits that in the absence of any rate of interest mutually agreed upon and specified or fixed by the parties or mentioned in the instrument on the amount due, the same shall be chargeable at the rate of 6% per annum until realization of the same, under Section 80 of the Negotiable Instruments Act, 1881, which may be awarded in favour of the plaintiff after decreeing the suit.
4. Mr. Mujahid Bhatti advocate appearing on behalf of the defendant has filed CMA No.17439/2014, which is an application under Section 5 of Limitation Act for condonation of delay in filing application under Order XXXVII, Rule 3 read with section 151, C.P.C. being C.M.A. No.17440/7014 filed by the authorized representative of the defendant. While arguing the first application, he contends that the defendant first came to know on 10.11.2014 from D-II Branch of this Court that the present suit has been filed against the defendant before this Court by the plaintiff, when the representative of the defendant went to the office of this Court for obtaining the next date of hearing in another Suit No.292/2003. He was further informed that the suit is fixed on 13.11.2014 for final disposal and as per the Bailiff's report dated 01.10.2014, the summonses/notices of the present suit have been served upon the defendant's servant namely Munib Ahmed or Munir Ahmed, upon which the service has been held good and the matter was fixed for final disposal. He further contends that the Bailiff in collusion with the plaintiff has prepared a false report dated 01.10.2014 to mislead this Court and that the same is not based on facts inasmuch as no CNIC number of the person, who according to the Bailiff has received the summons/notices of the suit, is mentioned in the Bailiff's report and no servant by the name of Munir Ahmed or Munib Ahmed is working with one of the defendant's director House, who allegedly received the summons of the above suit. He further contends that neither the defendant nor any one of its directors have been, personally served and that the suit for recovery of amount in summary proceedings on negotiable instruments included the amount of losses on account of mental torture in the shape of compensation/damages as well as cost of funds from the alleged date of default at KIBOR rate along with other similar prayer of ordinary civil jurisdiction is not maintainable under the law and summary proceedings, therefore, this Court has no jurisdiction to entertain the instant suit. He further submits that suit has not been filed by the authorized person, therefore, the same is liable to be dismissed as it is not maintainable. The plaintiff has failed to produce the cogent evidence with plaint to prove that the export manager of the plaintiff is competent to file the suit through Resolution dated 28.04.2012. At the end of his arguments, he states that unless the application under Section 5 for condonation of delay in filing the application under Order XXXVII, Rule 3, C.P.C. is allowed and the leave to defend application of the defendant is heard and decided, the defendant shall be seriously prejudice and suffer irreparable loss and injury.
5. In support of his contentions, the learned counsel for the defendant has relied upon the following case law:
(1) Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others reported in 1999 SCM R 2353 Supreme Court, wherein it is held that "delay in filing an application for leave to defend the suit cannot be condoned upon an application under Section 5 of Limitation Act, 1908 without stating therein sufficient reasons for condonation. ---- "Claim for damages cannot be equated with a suit founded on a negotiable instrument."
This judgment does not lend any support to the defendant inasmuch as the defendant has not been able to put-forth reasonable grounds for allowing condonation of delay by two years in making the application for leave to defend the suit. It is settled law that delay of each day has to be explained by the applicant in order to be entitled for condonation of delay, whereas in the instant application under Section 5 of Limitation Act, there is no explanation of such an inordinate delay of two years in making the application under Order XXXVII, Rule 3, C.P.C. However, as far as the question of claiming damages in the suit for recovery of money under summary chapter of the C.P.C. on the basis of negotiable instruments is concerned, I agree that prayer for compensation on account of mental torture and damages due to loss of business cannot be incorporated in the suit for the recovery of money based on negotiable instruments.
(2) Combine Products and 3 others v. Messrs SME Leasing Limited reported in 2015 CLD 1188 Sindh, wherein it is held that "Article 10-A of the Constitution provided that every individual was entitled to a fair trial and due process and under Article 4 of the Constitution, every individual of the State was entitled to be dealt in accordance with law."
Indeed it is undoubtedly the right of the defendant treated in accordance with law, however, the case law cited by the counsel for the defendant is distinguishable from the facts and circumstances of the present case inasmuch as the constitutional provision relied upon by the learned counsel for the defendant are not meant to provide a chance to a delinquent litigant to cause abuse of process of law, who has defaulted in repayment of money for the goods purchased by him years ago. Moreover, the present case deals with the loan advanced by a banking company, the procedure for the recovery and the modalities of which are quite different from that of the suits filed under summary chapter of Order XXXVII, C.P.C. for recovery of money.
(3) Trading Corporation of Pakistan (Pvt.) Limited v. Naveed Hasan Shah reported in 2015 M LD 1269 Sindh, wherein it is held that "The paramount purpose behind all legal formalities is to safeguard the interest of justice and not to thwart the same through technical knockouts."
This case is also distinguishable from the instant suit inasmuch as the principal laid down in the same is to protect the interest of the persons, who genuinely did not have knowledge of the pendency of suit against them and were never served with the summons of the same, whereas in the instant suit, the service of summons was validly held good upon the defendants, even after which they did not file the application for leave to appear and defend the suit and waited for two years to see the result, and when the suit was decreed against them, they have filed an application for condonation of such an inordinate delay along with application for leave to defend the suit.
(4) Khushi Muhammad v. Muzammal Khatoon and 10 others reported in 2014 CLD 92 Lahore, wherein it is held that "where the defendant was not served in accordance with law and the report of process server did not show that he delivered the copy of the plaint and other documents appended therewith, the period of ten days prescribed for a submission of the application to leave to appear and defend the suit under Art. 159 of Limitation Act will not start to run against the defendant."
This case is also not relevant to the facts and circumstances of the case, where the Bailiff's report clearly mentions that he left the copy of the plaint along with annexures at the registered office of the defendant in accordance with the law.
(5) Biny Ameen Khalil v. Riaz Ahmed Rahi reported in 2014 CLC 105 Lahore, wherein it is held that "Non-supply of copy of plaint to the defendant at the time of service of summons upon him would constitute a special circumstance for setting-aside decree under Order XXXVII, Rule 4, C.P.C.
Impugned order suffered from jurisdictional error and legal infirmity."
In this case, the distinguishing feature is that copy of the plaint was not provided to the defendant, whereas in the present case, the bailiff's report reflects that the copy of summons was duly received by the authorized officer of the defendant at the registered office of the defendant and thereafter, on 02.10.2014 the service upon the defendant was held good by the Registrar (O.S.) of this Court.
(6) Saleem Iqbal Qureshi v. Messrs. A.I. Brothers (Pvt.) Limited and another reported in 2011 YLR 1351 Karachi, wherein it is held that "Service of defendant only through courier service and not through bailiff and registered post was not valid service."
The facts of this case are distinguishable for the reasons mentioned in the foregoing para.
(7) ANFORDS (Pakistan) Limited v. Dentogene Laboratories Limited reported in 1984 M LD 208 Karachi, wherein it is held that "Service of sununons/notice on corporation by bailiff, who left summons/notice of stay application at time when office of corporation not working as all members of staff had left except telephone operator and a peon. In the circumstances, the Corporation was not served properly."
This case not at all relevant to the present one with regard to service of summons which was admittedly effected through the bailiff upon the authorized officer of the corporation as aforesaid.
(8) Messrs Nadeem and Company and another v. Messrs IMPEX International (Pvt.) Limited reported in 1992 CLC 1913 Karachi, wherein it is held that "Suit for recovery of amount in summary proceedings on negotiable instruments, where plaintiff had claimed compensation and damages on account of all in purchasing power of Pakistani currency in addition to claim or principal amount and interest thereon and had also not filed statement of account showing how the amount claimed in suit had been worked out by them, case was held to be fit and appropriate for grant of leave to defend."
This case deals with the situation where the plaintiff failed to file statement of account, whereas in the present suit all the bounced cheques issued by the defendant to the plaintiff have been filed along with the plaint and details whereof have also been mentioned in para-8 of the amended plaint.
(9) Mst. Tahira Taj v. Hakim Shah reported in 2011 CLC 950 Lahore, wherein it is held that "Application under the special procedure for setting aside the decree even on merit was maintainable under Order XXXVII, Rule 4, C.P.C., which is covered by Art. 181 of the Limitation Act, 1908 which provided for limitation of three years for, such application."
This case is distinguishable on the ground that it deals with setting aside an ex parte decree and the period of limitations for filing an application for setting aside the same, whereas in the instant case no judgment and decree have been passed so far.
6. In rebuttal to the arguments of the learned counsel for the defendant, the learned counsel for the plaintiff has submitted that the defendant has filed counter-affidavits to the aforesaid two applications of the defendant C.M.A. No.17439/2014, under Section 5 of Limitation Act for condonation of delay and C.M.A. No.17440/2014 under Order XXXVII, Rule 3 read with section 151, C.P.C. for leave to defend the suit, wherein the plaintiff has denied the all averments of the said applications. The learned counsel has further argued that it is false and frivolous story that the defendant's representative came to the Court to obtain next date of hearing in some other case and came to know about the pendency of the instant suit, whereas the defendant was observing the instant suit and its proceedings, but deliberately chose not to come forward to defend the same before this Court earlier and when the case came up for final disposal stage and when the same was going to be decided against the defendant, the defendant has now intervened after a delay of two years of the service of summons upon him of the instant suit in order to cause further delay and explode the situation by putting up a false defence and without any cogent evidence to substantiate the authenticity and correctness of his pleas; that the defendant has failed to mention the name of the staff member who brought to the knowledge of the defendant that another case is also filed against the defendant; that in D-II branch of this Court cases are distributed according to years, different staff members are responsible for cases filed in a particular year, thus the concerned clerk responsible for the cases of year 2003 is not likely to have knowledge regarding cases of 2014, therefore, no nexus can be established with the false story put up by the defendant in order to mislead this Court; that service was duly held' good upon the defendant, however, the defendant deliberately chose to stay away from the proceedings before this Court and from a close distance kept a vigil upon the same and has now come to the Court with the false story to get undue benefit and delay the matter; that the defendant has failed to show a sufficient cause and explain' the delay of each day in his application under Section 5 of Limitation Act, 1908, which is condition precedent to grant of such an application, thus the delay cannot be condoned and the instant application is liable to be dismissed; that in a suit for recovery of money on a negotiable instrument, losses on account of mental torture can be included in the shape of compensation and damages; that the documents annexed with the plaint are sufficient in order to establish and prove the plaintiff's case; that the defendant has made an admission that the cheques were issued by the defendant on the material supplied by the plaintiff to the defendant; that the application under Section 5 of Limitation Act as well as the application of leave to defend the case are, therefore, liable to be dismissed.
7. I have heard the arguments of the learned counsel for the parties, perused the material available on record of the case, examined the case law cited at the bar by the learned counsel for the defendant with his able assistance.
8. It is an admitted position that the service of summons of the instant suit was effected upon the defendant at its office address namely; "Muhammad Farooq Textile Mills Limited, office at Plot bearing No.50-B, situated at South Circular Avenue, Phase-II, Defence Housing Authority, Karachi" through the bailiff by delivering the summons to the authorized officer present at the aforesaid office address in accordance with Order XXIX, Rule 2 of the Code of Civil Procedure, 1908, which contemplates as under: "Service on corporation--- Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served:
(a) On the secretary, or on any director, or other principal officer or the corporation, or
(b) By leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business."
9. Upon bare perusal of the aforesaid provision of law with regard to service of summons on a corporation and comparing it with the contents of the bailiff report dated 01.10.2014 in the instant suit in respect of service of summons upon the defendant, according to which service was effected upon the defendant on 28.05.2014, whereas up to 02.10.2014 no application for leave to appear and defend the suit was filed, when the Additional Registrar (0.S.) held in his diary that the summons issued to the defendant returned duly served, I am of the considered view that the service of summons upon the defendant was rightly held good as aforesaid.
10. It is a matter of record that no application under Order XXXVII, Rule 3, C.P.C. for leave to defend the suit was filed by the defendant up to 13.11.2014. The defendant, in order to obtain condonation of delay from this Court in filing the same, also filed an application under section 5 of Limitation Act, 1908, however, the defendant miserably failed to make out a case for condonation of such an inordinate delay of approximately five months and five days, whereas he was supposed to file the application for leave to defend the suit within ten days counting from 28.05.2014. In the application under Section 5 of the Limitation Act, 1908 for condonation of delay in filing the application under Order XXXVII, Rule 3, C.P.C., the defendant was supposed to explain the delay of each day and make out a sufficient case for the grant of condonation of delay of such a nature. It is settled law that the delay of each day is to be explained before the Court can condone the delay, and, therefore, the same cannot be done unless an application stating sufficient reason for condonation is made. I am fortified in my view by the case of Messrs Qureshi Salt and Spices Industries v. 'Muslim Commercial Bank Limited supra wherein the Hon'ble Supreme Court has upheld the said principle. I am not at all convinced by the story with regard to getting knowledge of the instant suit that the defendant has made up in the applications.
11. It is also an admitted position that on account of an inordinate delay committed by the defendant in filing the application for leave to defend the suit, a vested right has accrued in favour of the plaintiff, and in case delay is condoned by this Court, the same shall cause an irreparable loss and injury to the plaintiff, which would be opposed to the principles of equity, quality and good conscience.
12. It is also an admitted position that the defendant has admitted to have purchased textile material from the plaintiff for which it issued cheques of different denominations, however, the same were dishonoured by the bank upon presentation for encashment.
13. The defendant has also not been able to make out a good case for the grant of leave to defend the suit in his application under Order XXXVII, Rule 3, C.P.C. inasmuch as the defendant has not been able to raise any plausible defence, triable issue, and/or raise substantial question of law or fact for the grant of the same. It is settled law of the superior Courts of Pakistan that in the summary suit on promissory notes and cheques when the defence sought to be set up is fake, without any material to support, and just bald allegations without any substance, both on legal and factual planes, the leave is to be refused outright, and when the issues raised by the defendant in the leave to defend application are illusory, the leave should not be granted, and should be refused. I am fortified in my view by the judgments reported in cases of Fine Textile Mills Limited, Karachi v. Haji Umar reported in PLD 1963 Supreme Court 163 and Muhammad Anwar v.
HOECHST Pharmaceutical PAU (Pvt.) Limited reported in 1989 M LD 171. The representative of the plaintiff has filed an affidavit in ex parte proof along with supporting documents which are on record and are un-rebutted by the defendant.
14. I have also carefully examined the Resolution passed by the Board of Directors of the plaintiff, authorizing Mr. Zafar Ali son of Muhammad Tufail to file the instant suit against the defendant. The said Resolution is signed by the Company Secretary, Mr. Safdar Hussain Tariq. Therefore, I am of the opinion that by virtue of the aforesaid Resolution the present suit has been filed by a person duly authorized by the Company's Board of Directors to file the present suit, therefore, the objection of the learned counsel for the defendants with regard to maintainability of the suit filed by unauthorized person is not sustainable. The case law relied upon by the learned counsel for the defendant in this context is, therefore, not relevant as well.
15.The burden to show that the suit has been filed by the authorized person is upon the plaintiff and the plaintiff has successfully discharged that burden by producing the aforesaid Resolution of the Board of Directors. It is also settled principal of law that in case if there is no defect in the institution of proceedings, the suit is maintainable.
16. The case based on negotiable instruments for recovery of money under Order XXXVII of the Code of Civil Procedure, 1908 is always maintainable and liable to be decreed, when cheque or a Bill of Exchange or any other negotiable instrument is dishonoured and upon filing the suit for recovery of the amount mentioned therein, the defendant has failed to file the application to obtain leave to defend the same or when the defendant has filed the leave to defend application the same does not disclose any plausible defence or triable issue or, substantial questions of fact or law which needs to be tried, the Court is justified in dismissing his leave to defend application and passing a decree against him. Reference in this regard can be made to the following case law:
(1) 2011 CLD 1757 [Karachi] - Saeed Abbas v. Agar International (Pvt.) Limited, wherein it is held that the suit for recovery of money on the basis of dishonored cheque or dishonored cross-cheque is maintainable. When cheque was dishonored, then its payee could sue its drawer and get decree against him for recovery of its amount.
(2) 2010 CLD 920 [Karachi] - M. Muhammad Shafi & Co. v. A. Rahman Enterprises.
In this case it is held that basically a cheque or a bill of exchange, being negotiable instrument, on being dishonoured gave right to sue to its holder under the summary procedure contemplated by Order XXXVII of the C.P.C. 1908.
(3) 2004 SCM R 1747 - Zubair Ahmed v. Shahid Mirza, wherein it is held that where the defence of the appellant evidently not a good standard, would not be considered plausible for grant of unconditional leave.
(4) 2011 CLC 172 [Karachi] - Muhammad Saleem v. Waqar Akhtar.
In this matter, it is held that when the defendant not shown any plausible defence in leave to defend application the trial Court was justified in dismissing his leave to defend application and was justified in passing of decree against him.
(5) 1985 CLC 3023 [Karachi] - Habib Bank Ltd. v. Al-Meezan International Limited. wherein it was held that where the application filed by the defendant for grant of leave to defend the suit did not disclose any triable issues, the same was rightly dismissed and was rightly rejected.
(6) 2011 M LD 1024 [Lahore] - Mirza Irian v. Muhammad Yaqoob.
In this case it is held that the defendant failed to obtain the required leave to defend the suit the plaintiff is entitled to a decree in circumstances.
(7) 1985 M LD 181 (Karachi) - Industrial Mining Enterprises v. Industrial Mineral Corporation Ltd.
In this case it is held that post dated cheque when issued, consideration for that was oral agreement between the parties, in pursuance of said oral agreement one other cheque was also delivered and enchased presumption under Section 118 of Negotiable Instruments Act, 1881 was clearly attracted in circumstances. The plaintiff was held to be entitled to institute a suit for recovery of money under summary chapter equivalent to amount dishonored cheque.
(8) 1993 M LD 637 [Karachi] - Tahir Mehmood Shaikh v. Prism Communication Ltd.
In this matter the defendant had acknowledged his liability to pay the amount even if his co- defendant did not pay it. Defendant subsequently issued cheque towards payment which was dishonored in such circumstances the plaintiff is entitled to a decree under Order XXXVII of the C.
P.C .
(9) 1985 M LD 916 [Karachi] - Seven Seas Services Limited v. World Marine Services Limited.
In this matter the plaintiff suing on the basis of oral agreement and dishonored cheque, defendants approving bills of plaintiff for payment by third principal, writing letter to plaintiff.
Conditional leave was granted on furnishing security equivalent to that of dishonored cheque.
17. I am not convinced by the argument of the learned counsel for the plaintiff that the prayer for compensation on account of mental torture and damages due to loss of business can be incorporated in the suit for the recovery of money based on negotiable instruments. I am fortified in my view by the case of Messrs Qureshi Salt and Spices Industries v. Muslim Commercial Bank Limited supra relied upon by the learned counsel for the defendant, wherein the Hon'ble Supreme Court has held that the claim of damages could not be equated with the suit founded on a negotiable instrument, therefore, I am not at all inclined to grant the compensation and damages.
However, I agree with the contention of the learned counsel for the plaintiff that in the absence of any rate of interest mutually specified or fixed by the parties or mentioned in the instrument on the amount due, the same shall be chargeable at the rate of 6% per annum until realization of the amount due thereon, under Section 80 of the Negotiable Instruments Act. For sake of convenience Section 80 of the Negotiable Instruments Act, 1881 is reproduced herein below: "Section 80 of Negotiable Instruments Act. Interest when no rate specified. When no rate of interest is specified in the instrument, interest on the amount due thereon shall, [notwithstanding any agreement relating to interest between any parties to the instrument ] be calculated at the rate of six per centum per annum from the date at which the same ought to have been paid by the party charged until tender or realization of the amount due thereon, or until such date after the institution of the suit to recover such amount as the Court directs ...."
18.I, therefore, for the aforesaid reasons, dismiss the applications of the defendant CMA No.17439/2014, under Section 5 of Limitation Act for condonation of delay and C.M.A. No.17440/2014 under Order XXXVII, Rule 3 read with section 151, C.P.C. for leave to defend the suit and decree the present suit in the sum of Rs.11,658,014/- along with 6% interest per annum to be charged from the month of January, 2010, when the amount owed by the defendant to the plaintiff ought to have been paid, till the realization of the same along with cost of the suit, which is to be calculated as per rules.