Delhi District Court
M/S Primus Finvest Pvt. Ltd vs Sh. Sanjeev Choudhary on 12 March, 2007
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IN THE COURT OF SH. P.S.TEJI : ADDITIONAL DISTRICT JUDGE:
DELHI
Suit No.422 of 2006
M/s Primus Finvest Pvt. Ltd. ...Plaintiff
Versus
Sh. Sanjeev Choudhary ...Defendant
ORDER
1 By this order, I shall decide the application filed by the defendant for the grant of leave to defend. Reply to the application has been filed by the plaintiff. 2 I have heard the arguments advanced by the counsel for the parties and gone through the material available on record.
3 The facts in brief are that the plaintiff being a private limited company filed the present suit for recovery of sum of Rs.10,63,003/- against the defendant. The plaintiff is engaged in the business of finance and the defendant is close friend of the director and customer of the plaintiff. The defendant made a written request dated 26.2.2001 for sanction of loan of Rs.9,50,000/- with interest @ 18%. The plaintiff sanctioned loan of Rs.9,50,000/-. The defendant made 2 a written request dated 20.2.2001 that out of the loan amount, Rs.3,50,000/- be given to Emm Kay Share & Brokers Ltd. to be paid on 1.3.2001, Rs.3,00,000/- to Clean Finance & Investment Ltd. to be paid on 20.3.2001 and Rs.3,00,000/- to Clean Finance & Investment Ltd. to be paid on 23.3.2001. The plaintiff had given the loan amount to the said firms. The defendant has been making the payment time and again which was credit in his account. The plaintiff delivered account statement showing the balance of Rs.7,00,197/- as on 31.3.2004. In April 2004, the defendant issued a cheque no.23269 but the said cheque was returned back. Thus, the plaintiff has claimed a sum of Rs.10,63,003/-. 4 In its application for leave to defend, the defendant has submitted that the plaintiff was a business associate of M/s Emmkay Share and Stock Brokers Ltd. and M/s Clean Finance & Investment Ltd. It is further submitted that the defendant incurred heavy losses due to Ketan Parikh scam. It is further submitted that the plaintiff induced the defendant to make payment to M/s Emmkay Shares & Stock Brokers Ltd. and M/s Clean Finance & Investments Ltd. It is further submitted that the letter dated 26.2.2001 is not signed 3 by the defendant nor he made any request vide letter dated 29.2.2001 and it does not bear his signature and the same are forged. It is further submitted that the defendant is not entitled to make any payment to the plaintiff. It is further submitted that the plaintiff has issued a letter dated 26.8.2003 vide which the account of the defendant was full and finally settled. It is further submitted that after receiving the amount of Rs.1.5 lacs by way of cheques bearing no.053697 dated 15.9.2003 for a sum of Rs.25,000/-, no.053698 dated 15.10.2003 for a sum of Rs.25,000/- and cheque no.053699 dated 25.11.2003 for a sum of rs.1,00,000/-, there is no due on the defendant. It is further submitted that the plaintiff has not stated as to how the balance become due and payable by the defendant. It is further submitted that the plaintiff has not shown the payments made to them as well as shares issued to them. It is further submitted that the defendant has given 5000 shares of M/s Filatex to the plaintiff on 28.8.2002 valuing Rs.80,000/-, having the present value of Rs.35,000/-. The defendant has given 1000 shares of Shivani Drilling on 28.8.2002 to the plaintiff valuing Rs.30,000/-, having the present value of Rs.2,90,000/-. The defendant delivered 2000 shares of M/s Satishay to the 4 plaintiff on 28.8.2002 valuing Rs.60,000/-, having the present value of Rs.5,80,000/-. The defendant gave 300 share of Lohia Machines Ltd. (LML), 200 shares of Bhushan Steels, 100 shares of Videocon International valuing all a sum of Rs.18,000/-, having the present value of Rs.75,000/-. It is submitted that the shares given to the plaintiff have not been adjusted by the plaintiff. It is further submitted the defendant has made the cash payment of Rs.20,000/- on 20.3.2002, Rs.20,000/- on 25.7.2002, Rs.20,000/- on 28.10.2002, Rs.15,000/- on 25.4.2003 and Rs.10,000/- on 28.4.2003 to the plaintiff which has also not been accounted by the plaintiff. The defendant sought leave to defend the suit.
5 In its reply, the plaintiff has denied that they were a business associate of M/s Emmkay Share & Stock Brokers Ltd. and M/s Clean Finance & Investment Ltd. It is further denied that the plaintiff induced the defendant to make the payment. It is submitted that the plaintiff has never written any letter dated 26.8.2003 in respect of payment stood adjusted. It is submitted that the contents of letter dated 26.8.2003 are fabricated. Rest of the case of the defendant has been denied by the plaintiff.
56 The case of the plaintiff is that the defendant vide letter dated 26.2.2001 requested the plaintiff for the grant of loan of Rs.9.5 lacs. On the other hand the defendant has denied that he has written any such letter and has also denied his signatures on the letter dated 26.2.2001. In the absence of admission by the defendant on the letter dated 26.2.2001, the fact of taking the loan by the defendant is in dispute, which is required to be proved on the record only by way of leading the evidence.
7 The next point of argument of the plaintiff is that the the defendant written a letter dated 29.2.2001 to the effect that the loan amount be disbursed in the name of Emm Kay Share & Stock Brokers Ltd. and Clean Finance & Investment Ltd. On the other hand, the defendant has denied that he has signed any letter dated 29.2.2001. The defence raised by the defendant is that the said firms are the business associates of the plaintiff. The defendant has further taken the defence that he has made several payment in cash to the plaintiff which has not been adjusted by the plaintiff. The defendant has further taken the defence that he has given shares of various companies to the plaintiff, amount of which 6 has also not been adjusted by the plaintiff. In view of the categorical denial of the defendant, I am of the considered opinion that the fact with regard to issuance of letter dated 29.2.2001 by the defendant for making the payment to Emm Kay Share & Stock Brokers Ltd. and Clean Finance & Investment Ltd. is to be ascertained by way of leading the evidence. I am further of the opinion that the fact of making the payment in cash and delivering the shares by the defendant to the plaintiff is also liable to be established on the record by way of leading the evidence.
8 The other ground taken by the defendant is that the plaintiff has issued a letter dated 26.8.2003 vide which the account of the defendant was settled in full and final. I have gone through the letter dated 26.8.2003, filed by the defendant. The perusal of letter dated 26.8.2003 shows that the plaintiff has issued this letter to the defendant. The plaintiff has mentioned in this letter that they have confirmed the account stand settled in full and final. It is further mentioned that no further payment of principal amount or interest shall stand on the defendant after receiving the following cheques:-
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Cheque No. Bank Name Amount Date 053697 Punjab National Bank 25,000/- 15.9.2003 053698 Punjab National Bank 25,000/- 15.10.2003 053699 Punjab National Bank 1,00,000/- 25.11.2003 9 It is further mentioned by the plaintiff in this
letter that after receiving the cheques of amount of Rs.1.5 lacs, there are no due on the defendant and no further liability of any nature shall be borne on him.
10 In view of the discussion made above, the defendant has raised several triable issues. The defendant has raised the triable issue to the effect, firstly whether the cheques mentioned above have been received by the plaintiff, secondly whether the cheques for full and final settlement of the dues of the defendant, thirdly whether the said letter dated 26.8.2003 has been issued by the plaintiff and fourthly whether no amount is lying due against the defendant. 11 Keeping in view the discussion made above and in view of the letter dated 26.8.2003, I am of the considered opinion that the defence raised by the defendant and the contents of letter dated 26.8.2003 are required to be proved on record and he has raised triable issues, which can be ascertained only by way of leading the evidence. 12 Consequently, it is held that the defendant has 8 raised sufficient defence for the grant of leave to defend the suit. So, the application for the grant of leave to defend is allowed and the defendant is granted unconditional leave to defend the suit.
Announced in the open Court ( P.S. TEJI )
on March 12th, 2007 Addl. District Judge
Delhi