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Delhi District Court

528/ vs Sushil Kumar Jain on 24 July, 2013

                         In the Court of Pawan Kumar Matto,
                          Additional District Judge­03 (East),
                                Karkardooma Court, Delhi

S.No: 3/2012

Unique Case ID No.:­ 02402C0009632012

In the matter of :­ 
Shri Rakesh Kumar

s/o Shri Kewal Krishan

Proprietor of M/s Padma Polychem

528/1, Karkari Road, Vishwash Nagar,

Delhi­110 032.                                     ..........Plaintiff

                                               Versus

Sushil Kumar Jain

Proprietor  of Shri Parasnath Plastic Industries

1/107 Behind Tash Factory

Vishwas Nagar,

Shahdara,Delhi­32.

Also at: 

1/84 Gali no.3,

Vishwas Nagar,Shadara,

Delhi ­32.

Also at:



 S.no:3/2012           Rakesh Kumar vs Sushil Kumar Jain                                       1 of 16
 D­8/IInd Floor

Ashoka Niketan,

Delhi­32.                                            .........Defendant

Date of institution               :10.01.2012

Arguments heard on                :19.07.2013

Order announced on                :24.07.2012


ORDER

1. This order of mine will dispose of an application filed by the defendant for grant of leave to defend.

2. Brief facts of the case are that the plaintiff has filed the present suit u/o 37 of CPC for recovery of Rs. 5,28,900/­ against the defendant, on the averments that the plaintiff is the sole proprietor of M/s Padma Polychem having its office at 528/1, Karkari Road, Vishwas Nagar, Delhi­32 and deals in Resin, Steric Acid, CPW, Calcium Carbonate, whereas, the defendant is the proprietor of M/s Parasnath Plastic Industries and the defendant was dealing with the plaintiff from time to time and during the course of business, the defendant used to place the orders for supplying of PVC Chemicals i.e. resins to the plaintiff and the plaintiff used to supply the goods as per the order of the defendant against invoices raised by the defendant, believing that payment shall be made by the defendant. The details of the invoices, vide which the goods S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 2 of 16 were supplied are as under:­ Sl.no. Bill no.& date Quantity Bill Amt.

1. 087 28.5.2010 2250 Kgs 1,37,970.00

2. 088 28.5.2010 3250 Kgs 2,00,143.50

3. 089 29.5.2010 6250 kgs 3,77,344.00

4. 138 16.7.2010 7250 kgs 4,68,169.00

5. 143 22.7.2010 5250 kgs 3,33,507.00

3. It is further averred that the plaintiff was also maintaining a running account and the defendant had made the part payments from time to time and for the balance amount of Rs.5,28,900/­, the defendant had issued a cheque bearing no. 674552 dated 6.8.2010, which was drawn on Punjab and Sind Bank, Branch Fatehpuri, Delhi in favour of M/s Padma Polychem, of which the plaintiff is the sole proprietor and on presentation, the said cheque was dishonored with the remarks "Exceeds Arrangements" on 10.8.2010.

4. It is further averred that the plaintiff had informed this fact to the defendant and the defendant had assured to the plaintiff that he will make the payment of the said amount within a month, but the defendant avoided to make the payment on one pretext or the other. It is further stated that the defendant asked to the plaintiff to present the cheque in question again on 13.12.2010, but, on the presentation of the said S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 3 of 16 cheque, it was again returned with the remarks"Exceeds Arrangements". It is further averred that the said cheque was issued by the defendant in order to discharge his liability and the cheque was duly signed by the defendant, hence he is liable to make the payment to the plaintiff.

5. It is further averred that the plaintiff had served a demand notice dated 15.12.2011 which was duly delivered to the defendant on 19.12.2011, but, despite of receiving of the legal notice, the defendant has failed to make the payment to the plaintiff, he has also failed to reply to the legal notice and the defendant is liable to pay a sum of Rs. 5,28,900/­ alongwith pendente­lite interest @ 24% per annum and prayed for passing a decree for a sum of Rs. 5,28,900/­ alongwith pendete­lite interest @ 24% per annum in favour of the plaintiff and against the defendant. It is further averred that the plaintiff has also filed a criminal complaint against the defendant u/s 138 of NI Act in the court of Ms Nyaya Bindu, Ld. MM, KKD,Delhi.

6. The summon of the suit was issued to the defendant. On the service of the same, the defendant had filed his appearance. Thereafter, the plaintiff had filed the application for issuance of summons for judgment and the same were issued to the defendant and on the service thereof, the defendant has filed the application for leave to defend, stating therein that he is desirous to contest the present "eviction petition" and further S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 4 of 16 stated that the plaintiff is not entitled to any relief and the present petition is not maintainable in law and it is a gross abuse of the process of law. It is further stated that the plaintiff is a good friend of the defendant, who used to come in the office cum factory of the defendant, where the blank signed cheque book of the defendant was kept, so that in the absence of the defendant, his Manager could make the payment to the suppliers.

7. It is further averred that the defendant was surprised when he received the legal notice dated 15.12.011 regarding dishonor of cheque no. 674552 of Rs. 5,28,900/­ and when the defendant checked his cheque book, the said cheque was found to be missing and immediately the defendant made a written complaint to the SHO PS Farsh Bazaar and to other higher officials and the investigation is going on and the defendant had also told this fact to the court, where the case u/s 138 of N I Act is pending trial and further stated that in these circumstances, it is clear that the defendant has not issued the cheque in question to the plaintiff against any legal liabilities, but, it is the plaintiff who has stolen the said cheque of the defendant.

8. It is further stated that the defendant has not received any good vide above said bill numbers and further stated that the perusal of the bills show that the same do not bear signatures or seal of the defendant or S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 5 of 16 defendant firm and the above said bills have been forged and fabricated by the plaintiff. It is further stated that it was the plaintiff who used to manipulate the ledger account of the defendant with the help of his accountant and prayed for grant of leave to defend.

9. The plaintiff has filed the reply to the said application and stated that the defendant has not raised any material issues, which would entitle to the defendant for conditional/unconditional leave to defend the suit. It is further stated that the defendant is not entitled to contest the suit, as the defendant has not placed on record any substantial documents. It is further stated that no triable issue has been raised by the defendant, hence this court has power to pass a decree in favour of the plaintiff as the defendant has admitted that cheque in question was issued/signed by the defendant and this is sufficient admission on the part of the defendant and the application filed by the defendant is false and frivolous and is not maintainable and is liable to be dismissed and the accompanying affidavit does not disclose any defence and is liable to be dismissed.

10.It is further stated that the defendant has misunderstood the case, as he has mentioned the "present eviction petition", whereas, the present suit is for recovery and the affidavit filed by the defendant does not disclose any triable issue which would entitle him to defend the suit. It is also stated that the suit of the plaintiff is a recovery suit on the basis of the S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 6 of 16 cheque of Rs.5,28,900/­. The plaintiff has also denied that the defendant is entitled for leave to defend the present suit and after denying the averments made in the application, the plaintiff has sought the dismissal of the application for leave to defend and prayed for decreetal of the suit.

11.I have heard the ld. counsels for the parties and perused the record.

12.Ld.counsel for the defendant has submitted that the plaintiff has failed to file original invoices and cheque on record and he has filed only copies thereof, so the same cannot be looked into, so, no case u/o 37 of CPC is made out. He has also submitted that the cheque of Rs.5,28,900/­ dated 6.8.2010 was stolen by the plaintiff and this fact has come to the knowledge of the defendant on receiving of the notice dated 15.12.2011 and he had filed a complaint in the PS Farsh Bazar and the investigation is still pending. He has also submitted that the plaintiff has failed to file on record any agreement showing that any transaction was ever held between the plaintiff and the defendant. He has also submitted that on the copies of the invoices placed on record by the plaintiff signature of some Phool Singh are present, but the Phool Singh has no concern with the defendant. nor the plaintiff has ever supplied any good to the defendant. and since the suit of the plaintiff is based on the stolen cheque, which was kept by the defendant in his office, so that his S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 7 of 16 Manager could make the payment to the supplier, so the defendant is entitled for the leave to defend unconditionally and prayed accordingly.

13.On the other hand, the counsel for the plaintiff has submitted that the defendant has taken the plea that the plaintiff used to come in the office cum factory of the defendant, where the blank signed cheque book of the defendant was kept and the object of the defendant was to keep such signed cheques, so that Manager of the defendant could make the payment to the suppliers. He has further submitted that a prudent person would never leave any blank signed cheque book in his office unattended. He has further submitted that no complaint was ever filed by the defendant regarding the theft of the cheque. He has also submitted that the defendant has taken the plea that a complaint was filed by him in the PS Farsh Bazar, but no copy of any such complaint has been placed on record by the defendant to substantiate his contention and in the absence of any copy of such complaint, it is clear that the defendant has concocted a false story. He has also submitted that the counsel for the defendant has submitted that the said complaint of the defendant is still under investigation and further submitted that the considerable period has already been passed and it is not probable that the complaint would remain pending for such a long time. He has also submitted that no such complaint has ever been filed by the defendant. He has concocted a false S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 8 of 16 story. Had there been any complaint against the plaintiff, the police could enquire from the plaintiff about the same. But, the police never came to the plaintiff to make any inquiry in this regard. He has also submitted that had the police failed to take any action on the complaint of the defendant, the defendant could file an application u/s 156(3) of CrPC and could seek direction for the registration of the case against the plaintiff. But, the defendant has failed to file any such application in any court and in the absence thereof, it can be inferred that the story of the theft of the cheque has been concocted by the defendant, so the same cannot be relied upon. The counsel for the plaintiff has submitted that the delivery of the goods vide two invoices were taken by Phool Singh who was the employee of the defendant at that time. He has further submitted that in para no.2 of the affidavit, in support of the leave to defend, the defendant has admitted that the plaintiff is a good friend of the defendant. He has submitted that the plaintiff has supplied the goods to the defendant for a total amount of Rs. 15,17,133.50 paise and the certified copies of the invoices thereof have been placed on the record being Annexure B to F and in discharge of his liability to pay the remaining amount of Rs. 5,28,900/­, the defendant had issued the cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/­ in the name of the firm of the plaintiff M/s Padma Polychem, of which the S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 9 of 16 plaintiff is the sole proprietor. He has also submitted that He has also submitted that since the defendant has not denied his signature on the cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/ and further submitted that the defendant has concocted a false story of theft of the cheque, whereas he has issued the same in order to discharge his liability and no triable issues has been raised by the defendant and the defence taken by the defendant is moonshine and since the signature on the cheque has been admitted by the defendant, so the suit of the plaintiff is liable to be decreed and the application filed by the defendant is liable to be dismissed. He has also relied upon the judgment passed by Their lordship of Supreme Court of India in case M/s. Mechalec Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687.

14.I have given thoughtful considerations to the submissions made by Ld. counsel for the parties and perused the record.

15.Perusal of the record shows that the plaintiff has filed the present suit u/o 37 of CPC for recovery of Rs. 5,28,900/­ against the defendant and the plaintiff has supplied the goods to the defendant for a total amount of Rs. 15,17,133.50 paise and the certified copies of the invoices have been placed on the record being Annexure B to F. He has also relied upon the certified copy of the cheque bearing no. 674552 dated 6.8.2010 S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 10 of 16 of an amount of Rs.5,28,900/.Whereas, the Ld.counsel for the defendant has submitted that the plaintiff has failed to file original invoices and cheque bearing no.674552 dated 6.8.2010 of an amount of Rs.5,28,900/­ on record, so the case is not made out u/o 37 of CPC and he has filed only copies thereof,so the same cannot be looked into.Whereas, perusal of the record shows that the plaintiff has filed the certified copies of the invoices Annexure B to F of total amount of Rs. 15,17,133.50 paise and also certified copy of the cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/.The counsel for the plaintiff has submitted that the original cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/­,on the basis of which the present suit has been filed by the plaintiff,is there on the record of criminal case u/s 138 of Negotiable Instrument Act,therefore,I do not find any force in such submissions of the ld.counsel for the defendant that the certified copy of the cheque cannot be looked into in the given circumstances. The counsel for the defendant has also submitted that the cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/­ was stolen by the plaintiff and this fact has come to the knowledge of the defendant, on receiving of the notice dated 15.12.2011 and he had filed a complaint in the PS Farsh Bazar and the investigation is still pending. The ld.counsel for the defendant has submitted that the blank signed cheque book was kept by the defendant S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 11 of 16 in his office, so that, in the absence of the defendant his Manager could make the payment to the supplier of the goods. But, the defendant has failed to file any copy of complaint on the record, which is alleged to have been filed by the defendant in the PS Farsh Bazar, to substantiate his contention and the ld.counsel for the defendant has submitted that the said complaint of the defendant is still under investigation,but as the defendant has failed to file the copy of the any such complaint on the record, and in the absence of copy of any such complaint, and in view of passing of considerable period, the contention of the defendant that he had filed any complaint in the PS Farsh Bazar soon after receiving the legal notice dated 15.12.2011 appears to be not probable. In the considered opinion of this court, had there been any complaint against the plaintiff, the police could enquire from the plaintiff about the same. But, the counsel for the plaintiff has submitted that the police never came to the plaintiff to make any inquiry in this regard and if the police had failed to take any action on the complaint of the defendant, the defendant could file an application u/s 156(3) of CrPC in the court concerned, but no such application has been filed by the defendant, so in the absence of any such complaint or application, such contention of the defendant that the cheque is stolen by the plaintiff is without any substance and the plea of the defendant that he had kept the blank signed S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 12 of 16 cheque book in his office, from where, the cheque in question is alleged to have been stolen also appears to be improbable, as a prudent man never keeps any signed blank cheque book anywhere unattended, so such contention of the defendant is also without any substance. Ld.counsel for the defendant has submitted that on the copies of the invoices placed on record by the plaintiff, signature of some Phool Singh are present, but the Phool Singh has no concern with the defendant. But, the counsel for the plaintiff has clarified that the Phool Singh was none but the employee of the defendant and since the defendant has admitted his signature on the cheque bearing no. no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/­ and this court has disbelieved the version of the defendant that either the said cheque is stolen by the plaintiff or that the defendant had kept the said cheque blank in his office, so cumulative effect of the above discussion is that this court has come to the conclusion that the plaintiff had supplied the goods to the defendant vide invoices Annexure B to F of a total amount of Rs. 15,17,133.50 paise and in discharge of his liability to pay the remaining amount of Rs. 5,28,900/­, the defendant had issued the cheque bearing no. 674552 dated 6.8.2010 of an amount of Rs.5,28,900/­ in the name of the firm of the plaintiff M/s Padma Polychem, of which the plaintiff is the sole proprietor.

16.Their lordship of Supreme Court of India in case M/s. Mechalec S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 13 of 16 Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, is pleased to laid down the following principles for granting or refusal to grant the leave to defend :

a) If the defendant satisfies the Court that he has a good defence to the claim on its merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action, he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend, but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, then, ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. S.no:3/2012 Rakesh Kumar vs Sushil Kumar Jain 14 of 16

e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.

13.The word 'defence' means lawful defence available to the defendant under the law. The defendant may plead any defence i.e. of law or of fact. It is settled principle of law that if the application for leave to defend raises an issue which is triable, leave to defend must be granted. The case of the parties has to be seen in the light of above stated principles.

Announced in the open
Court on : 24.7.2013                                         (Pawan Kumar Matto)
                                                          Additional District Judge­03
                                                      (East), Karkardooma Court,Delhi
                                                                      Delhi .




 S.no:3/2012           Rakesh Kumar vs Sushil Kumar Jain                                       16 of 16
  S.no:3/2012           Rakesh Kumar vs Sushil Kumar Jain                                       17 of 16