Delhi District Court
Sh. Shankar Das Falwaria vs Sh.Mukesh Kumar And Anr on 29 November, 2024
IN THE COURT OF MS. GOMA DABAS GUPTA :
DISTRICT JUDGE-06 : WEST DISTRICT :
TIS HAZARI COURTS : NEW DELHI
CIVIL SUIT NO.911/23
CNR NO.: DLWT01-008558-2023
IN THE MATTER OF :-
SHANKAR DASS FALWARIA
S/O LATE SH DHARAM DASS
R/O 25/3, ASHOK NAGAR, TILAK NAGAR,
NEW DELHI-110018
EMAIL: [email protected]
Mobile: 9868912670 ..........Plaintiff
VERSUS
1. MUKESH KUMAR
2. PAWAN KUMAR
BOTH S/O SH CHAMAN LAL
R/O FLAT NO.535, IIND FLOOR, POCKET-III
PASCHIM PURI,
NEW DELHI-110063
..........Defendants
ORDER
1. Plaintiff Shankar Dass Falwaria has instituted the present suit under Order 37 of CPC for recovery of a sum of Rs.16,00,000/- (Rupees Sixteen Lacs only) on the basis of a dishonoured cheque purportedly issued by defendant No.1/Mukesh Kumar. Defendant No.2/Sh Pawan Kumar is the brother of defendant No.1.
2. The case of the plaintiff as disclosed in the plaint: defendant no.1 is CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 1 of 14 running a business of footwears and owner of the property at Madipur, Paschim Puri. Defendant no.2 is brother of defendant no.1. On 08.01.2021, plaintiff entered into an Agreement-for-sale with defendant No.1 & 2 for purchasing the property bearing No. Flat No. 22-B, Third Floor, Pocket-II, Madipur, Paschim Puri, New Delhi-110063, without roof rights (hereinafter referred to as 'property') for an agreed sale consideration of Rs.30,00,000/- (Rupees Thirty Lac only); In terms of this agreement, plaintiff paid an amount of Rs.8,00,000/- (Rupees Eight Lacs only); The said amount was paid in four parts. Out of the same, Rs. Four Lacs in cash and Rs. Two Lacs via NEFT on 13.11.2020, Rs. One Lac via NEFT on 23.11.2020 and Rs. One Lac via NEFT on 28.12.2020; As per the said agreement, the balance payment was to be made by the plaintiff on or before 20.03.2021 and plaintiff requested defendants to execute sale documents prior to the same but defendants delayed the execution of sale documents. Plaintiff made various requests to defendants to execute the documents and even on 22.03.2021, plaintiff visited the office of Sub-registrar but neither defendants came there nor they replied the phone calls of plaintiff; Plaintiff sent a hand written letter dated 22.03.2021 to defendant; That on 23.03.2021, defendants approached the plaintiff and stated that due to some anti-social elements in believing some bad things about the plaintiff, he is not ready to sell the property, however, he was ready to compensate the loss and damages caused to plaintiff by returning double of the bayana amount. Hence, defendant no.1 in discharge of CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 2 of 14 liability of both defendants, issued a cheque bearing No. 084482 dated 23.03.2021 drawn on Central Bank of India, Madipur Branch, New Delhi but when plaintiff presented the cheque, it was returned back dishonoured vide return memo dated 24.03.2021; Plaintiff sent a legal notice dated 29.03.2021 under the provisions of Negotiable Instruments Act which was delivered on 08.04.2021 but defendants have not replied the same; Plaintiff also filed a complaint case bearing CC NO. 1399/2021 under the provisions of Negotiable Instrument Act; that defendants informed that they have sold the suit property to one Vandana. Defendants failed to make the bayana amount. Hence, the present suit.
3. Summons under Order 37 of CPC were issued to the defendants and they filed the requisite appearance within the prescribed period. Thereafter, on the application filed by the plaintiff, summons for judgment were issued to the defendants and the leave to defend was filed by them within the stipulated period.
4. Defendants have sought unconditional leave to defend on the following grounds;
(a) That there was no agreement between the plaintiff and defendants; (b) That plaintiff filed false and frivolous agreement for sale/bayana and receipt; (c) That no proof of payment of amount has been filed by the plaintiff; (d) That in the said agreement for sale, there is no mention of double of payment; (e) That the defendants are CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 3 of 14 not liable to pay the alleged amount; (f) That the suit filed by plaintiff is an abuse of process of law and (g) That the cheque in question was security amount and same was only signed by defendant no.1 only.
5. Plaintiff has not filed reply to the said application and counsel for plaintiff has argued on the same.
6. Arguments heard. Record perused.
7. Order XXXVII of CPC provides for expeditious delivery of judgment in respect of certain documents as mentioned therein. The procedure is basically an exception to the general rule relating to the recovery of money under classes of suit specified under Order XXXVII CPC. The procedure for recovery of money under Order XXXVII CPC being summary in nature envisaged that defendant has to satisfy the court that he has defence to the suit filed by plaintiff. If the defence raised by the defendant is plausible, court would grant him leave to defend and thereafter, the defendant would be permitted to contest the suit either conditionally or unconditionally.
8. The principles governing the grant and non-grant of leave to defend under Order XXXVII Rule 3 of CPC have been laid down by the Apex Court in the matter of "IDBI Trusteeship Services Ltd. Vs Hubtown Ltd." 2017 (1) SCC 568. The observations made in para-17 CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 4 of 14 of the judgment are as follows:
17. Accordingly, the principles stated in paragraph 18 of Mechelec's case will now stand superseded, given the amendment of Order XXXVII Rule 3, and the binding decision of four judges in Milkhiram's case, as follows;
17.1 If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;
17.2 If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend; 17.3 Even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant's good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated.
Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security;
17.4 If the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 5 of 14 triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5 If the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith;
17.6 If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
9. Coming to the facts of the present case. The plaintiff has placed on record original Agreement for Sale/Bayana and Receipt dated 08.06.2021 between Sh. Mukesh Kumar and Sh. Pawan Kumar on the first part and Sh. Shankar Dass whereby it is admitted by the parties that the first party has received a sum of Rs.4,00,000/- by cash and Rs.4,00,000/- by NEFT dated 13.11.2020, 23.11.2020 and 28.12.2020 respectively from the second party as an earnest money. The plaintiff has also placed on record certified copy of a cheque bearing no. 084482 dated 23.03.2021 for an amount of Rs.16,00,000/- issued by the Mukesh Footwear Mukesh Kumar which is stated to be a proprietorship concern of the defendant no.1 Mukesh Kumar. The said cheque is admitted by the defendant and it CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 6 of 14 has been contended that the cheque in question was a security cheque and was only signed by the defendant. No explanation has been given by the defendant as to what purpose such security was given by the defendants in the form of the cheque in question.
10.It would also be prudent to examine the contours of section 138 of the Negotiable Instruments Act vis-a-vis blank cheques. As discussed above, it should be noted that a presumption is raised in favour of the holder of cheque regarding the execution of cheque for consideration and in discharge of a legally enforceable debt. If the accused is issuing a cheque after signing the same to the complaint albeit blank cheques, he is giving implied authority to the complainant to fill the blank details and/or to present the cheque on or after the date mentioned in the cheque. Therefore, aforementioned statutory presumptions can be raised in favour of the complainant even in case of blank cheques also. Reference can also be taken from the decision of the Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque and post-dated cheque in a proceeding u/s 138 of the Act has interalia held the following:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 7 of 14 discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
11.Therefore, in light of the above discussion, I am of the considered view that statutory presumptions under section 118(a) and 139 of Negotiable Instruments Act would be raised even in the case of blank and/or post-dated signed cheques. Hence, in instant case, since, the defendant has admitted the execution of impugned cheque and his signatures therein, therefore, the aforementioned statutory presumptions would be raised in favour of the plaintiff regarding the fact the impugned cheque was drawn for consideration and issued by the defendant in discharge of legally enforceable debt.
12. The defendant has averred that the Sale/Bayana Receipt filed by the plaintiff is false and frivolous. The defendant has raised doubts with respect to the Agreement of Sale/Bayana Receipt which was prepared and attested on 28.12.2020, 08.12.2021 and 08.01.2021. The defendant has alleged that the payments were made to the CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 8 of 14 plaintiff prior to the execution of the said false and fabricated document on 13.11.2020, 23.11.2020 and 28.12.2020 for a total sum of Rs. 4,00,000/-. The defendant has averred that in the present case, payments were made prior to the execution of the agreement which is not the normal procedure, as alleged. This shows that the defendants have not disputed the receipt of payment, as mentioned above and has only disputed with respect to the procedure in which the payments were made. As per the definition of 'consideration' u/s 2 (d) of the Indian Contract Act, 'past consideration' is a valid consideration in the Indian Law of Contract. Even if the amount was received by the defendant prior to the execution of the Agreement, it is still a good and valid consideration as per the law of Contract. Even otherwise, no explanation has been given by the defendants for the receipt of such amount. To the contrary, the defendant has admitted issuance of the cheque in question for an amount of Rs. 16 Lacs without specifying any purpose for which it was issued.
13. Dishonour of a cheque is actionable under Order XXXVII of CPC provided notice of dishonour has been given to the drawer. The present suit is based on a dishonoured cheque. Plaintiff has placed on record the certified copy of the cheque mentioning that the original cheque has been filed in the complaint filed by him under Section 138 of Negotiable Instrument Act. The suit has been filed in the manner prescribed under Order XXXVII of CPC. It contains an averment to the effect that the plaintiff is not seeking any other relief CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 9 of 14 which does not fall within the ambit of Order XXXVII of CPC.
14. Now, coming to the aspects whether the defendant has a substantial defence to the plaintiff's claim or the defence raised by him is sham. Section 118 of the Negotiable Instrument Act provide certain presumption in case of a negotiable instrument. Section 118(a) states that until the contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration and that every instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. This is indeed a rebuttable presumption. At this stage, it has to be seen whether an opportunity for rebutting the presumption needs to be granted. It is not the defence raised by the defendant that the cheque does not bear his signatures. Defendant has admitted his signatures on the cheque. The only defence of the Defendant is that the cheque in question was a security cheque, however, no purpose has been explained for which the said cheque was issued as a security cheque. Defendant has admitted that he was the author of these cheques. His sole contention is that the cheque was a security cheque. The said line of defence is improbable. It can not be conceived that a prudent man would give a security cheque of Rs. 16,00,000/- without any purpose. It further fortifies the conclusion that the defence raised by the defendant is moonshine.
15. Coming to the aspect of interest being claimed by the Plaintiff in his CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 10 of 14 suit under Order XXXVII of CPC. The High Court of Delhi observed in "Jindal Steel & Power Limited Vs N.S.Atwal" (CS-OS No.713/2010) as under:
"13. As far as the plea of the maintainability of the suit under Order 37 of the CPC is concerned, though undoubtedly there is no document on the basis whereof, the defendant can be said to have admitted the liability in the balance principal amount of Rs.2,98,39,060/- towards the plaintiff but in my opinion, in view of the subsequent admission by the defendant of the liability in the principal amount claimed in the suit, the same pales into insignificance. This Court, if were to, inspite of such admission by the defendant, go into technicalities as to the maintainability of the suit under Order 37 of the CPC, would be lending credence to the perception "the law is an ass - an idiot" echoed by Mr. Bumble in Charles Dickens 'Oliver Twist'. Justice cannot be frustrated by legalistics. It is the duty of every court to prevent its machinery from being made a sham, thereby running down the rule of law itself as an object of public ridicule. It will and must prove any stratagem self defeating if a party indulges in making the law a laughing stock, for the court will call him to order. Justice Krishna Iyer in Bushing Schmitz Private Limited v. P.T. Menghani (1977) 3 SCR 312 quoted with approval Lord Erskine "there is no branch of the jurisdiction of this Court more delicate than that, which goes to restrain the exercise of a legal right". He further held "But the principle of unconscionability clothes the court with the power to prevent its process being rendered a parody". Once it is clear that there is no dispute of CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 11 of 14 the sum of Rs. 2,98,39,060/- being due from the defendant to the plaintiff in the loan account, the Court will not enter into an academic exercise and pronounce on technicalities. The Supreme Court in T. Arvindandam Vs. T.V. Satyapal, AIR 1977 SC 2421, Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I (2004) 9 SCC 512 and ITC Limited Vs. Debts Recovery Appellant Tribunal, (1998) 2 SCC 70 has held that the Courts are not to prolong litigations, the fate whereof is otherwise clear and at the expense of other cases requiring adjudication. Even if not under Order 37 of the CPC, the plaintiff under Order 12 Rule 6 CPC or under Order 15 is entitled to a decree in the principal sum of Rs. 2,98,39,060/-. Recently also, in Krishna Devi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 SCC 363, the Supreme Court observed that justice is only blind or blindfolded to the extent necessary to hold its scales evenly; it is not, and must never be allowed, to become blind to the reality of the situation, lamentable though that situation may be."
16. I am of the considered opinion that defendant No.1 has failed to disclose that there is a triable issue for which leave to defend may be granted. The suit is based on cheque executed by defendants. Indeed, the claim of the plaintiff contains the amount towards interest and incidental charges but this does not mean that the plaintiff is dis- entitled for a decree under Order XXXVII of CPC. Question whether interest could be granted in the absence of agreement between parties came for consideration before Hon'ble Delhi High Court in "Ramesh CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 12 of 14 Chander versus M/s Shiv Infra Promoters Pvt Ltd RFA No. 211/2017 dated 21st August, 2018 in which it held as under :
"No doubt there is no agreement between the parties, but counsel for the appellant/plaintiff rightly relies upon paragraph 21 of the judgment of the Supreme Court in the case of South Eastern Coalfields Ltd. Vs. State of M.P. and ors., (2003) 8 SCC 648 and which holds that interest is payable in equity in certain circumstances. This paragraph 21 of the judgment in the case of South Eastern Coalfields Ltd. (supra) reads as under:-
"21. Interest is also payable in equity in certain circumstances. The rule in equity is that interest is payable even in the absence of any agreement or custom to that effect though subject, of course, to a contrary agreement. Interest in equity has been held to be payable on the market rate even though the deed contains no mention of interest. Applicability of the rule to award interest in equity is attracted on the existence of a state of circumstances being established which justify the exercise of such equitable jurisdiction and such circumstances can be many.
17. In Ramesh Chandra's case after relying upon the judgment of in "South Eastern Coal Fields Ltd Vs State of MP and Anr" (2003) 8 SCC 648, the High Court of Delhi held that a Court can always grant an interest on equity basis to a party entitled for the same and therefore, there is nothing wrong in law for a plaintiff to claim an interest in a summary suit as grant of an interest would always be subject to discretion of the Court. Merely because a plaintiff has demanded an interest from defendant, it cannot be said that the suit CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 13 of 14 filed by plaintiff would not be maintainable and therefore, contention of defendant on this account is rejected.
18. Section 80 of Negotiable Instrument Act, 1881, provides that when no rate of interest is agreed, rate of interest shall be calculated at the rate of 18% per annum from the date when such amount should have been paid by the party. Present suit is based on dishonoured instrument, therefore, plaintiff, under the law, is entitled to claim interest @ 18% on the dishonoured cheques.
19. Accordingly, the suit is decreed against the defendant with the following reliefs;
(i) A decree for a sum of Rs.16,00,000/- (Rupees Sixteen Lacs only) is passed in favour of plaintiff and against the defendants alongwith pendente lite and future interest at the rate of 18% per annum from the date of filing of present suit till realization of decreetal amount.
(ii) Cost of the suit is also awarded to the plaintiff.
20. Decree sheet be prepared accordingly. File be consigned to record room.
GOMA Digitally signed
by GOMA DABAS
Announced in the open court on DABAS GUPTA
Date: 2024.11.30
GUPTA
29.11.2024
15:56:26 +0530
(Goma Dabas Gupta)
District Judge-06
West District, Tis Hazari Courts,
Delhi/29.11.2024
CS No.911/23 Shankar Das Falwari Vs Mukesh Kumar and anr page 14 of 14