Delhi District Court
Suit No.55/2012 (Surjeet Singh vs Anil Kumar Yadav) Dod: 04.09.2012 on 4 September, 2012
Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit No.55/2012
Unique Case ID No.: 02405C0262392011
In the matter of:
Shri Surjeet Singh,
S/o Shri Ajeet Singh,
R/o Village & PO: Bharthal,
Near Old Mandir,
New Delhi.
.....Plaintiff
Versus
Shri Anil Kumar Yadav,
S/o Shri Suraj Bhan,
R/o H.No.F67, Raj Nagar,
Palam Colony,
New Delhi110 045.
.....Defendant
Date of Institution of suit: 03.09.2011
Date of reserving judgment: 04.09.2012
Date of pronouncement: 04.09.2012
U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 1 of 7
Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
04.09.2012
Present: Shri J.S Sangwan, Ld. Counsel for the plaintiff.
None for the defendant.
Matter has been passed over several times since morning. It is already 3.15 PM. The learned counsel for the plaintiff has been waiting since morning. Even on the last date of hearing also, the learned counsel for the defendant had not appeared and this court had deferred passing adverse orders. I have heard the learned counsel for the plaintiff and perused the grounds set out by the defendant seeking leave to defend the matter.
2. The facts of the case shorn of unnecessary details, as borne out from the record are that plaintiff and defendant had good acquaintance with each other. On the defendant's asking for a friendly loan in November' 2008, plaintiff had granted a loan of Rs.13,00,000/ (Rupees Thirteen Lakhs Only) to him, in lieu whereof the defendant issued following three post dated cheques:
S.No. Cheque Number & Date Amount (Rs.) & Drawn On Bank Remarks
(i) 000002, dated 31.12.2009 2,50,000/; Kotak Mahindra Bank Ltd., Branch JMD Regent Square, MehrauliGurgaon Road, Gurgaon. All the cheques in question were issued
(ii) 000005, dated 05.01.2010 2,50,000/; Kotak Mahindra Bank in favour of plaintiff.
Ltd., Branch JMD Regent Square, MehrauliGurgaon Road, Gurgaon.
(iii) 000006, dated 15.05.2010 8,00,000/; Kotak Mahindra Bank Ltd., Branch JMD Regent Square, MehrauliGurgaon Road, Gurgaon.
U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 2 of 7 Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
3. The said cheques on presentation to his banker by the plaintiff got dishonoured for "insufficient funds" vide Cheque Returning Memo of the concerned bank dated 28.06.2010. Thereafter, the plaintiff filed a complaint case U/s 138 Negotiable Instruments Act against the defendant, wherein the defendant stands summoned as an accused and the said case is pending consideration in the court of Ld.Metropolitan Magistrate, Dwarka District Courts, Delhi.
4. In the leave to defend application, the sole defence which has been taken by the defendant is that the cheques in question were got issued by the plaintiff from him under threat, coercion, pressure & force and a complaint U/s 156 (3) Cr.P.C r/w Section 200 Cr.P.C has been filed by him against the plaintiff, which is pending consideration in the court of Ld.Metropolitan Magistrate, Dwarka District Courts, Delhi. It has been further stated that the plaintiff has not placed on record the material on the basis of which the defendant was liable to pay the aforesaid cheques to the plaintiff.
5. The learned counsel for the plaintiff has very vehemently argued that the defence taken by the defendant in the leave to defend application is illusory and moonshine.
U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 3 of 7 Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
6. The proposition of law for granting leave to defend is set down by the Hon'ble Supreme Court in the celebrated judgment, reported as, "AIR 1977 SC 577", titled as, "M/s Mechalec Engineers & Manufacturers V/s M/s Basic Equipment Corporation", wherein five conditions have been postulated:
(a) If the defendant satisfies the court that he has a good defence to the claim on merits, 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 possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at the time of granting leave to defend, the conditions being as of time of trial or mode of trial but not as to payment into "Court or furnishing security".
(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend.U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 4 of 7
Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff by imposing the condition that the amount claimed should be paid into court or otherwise secured."
7. In case reported as, "AIR 1990 SC 2218", titled as, "Mrs.Raj Duggal V/s Ramesh Kumar Bansal", the Apex Court had opined as follows:
"Leave is declined where the court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainity as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to crossexamine his witnesses, leave should not be denied. Where also, the defendant shows that even on fair probability he has a bonafide defence, he ought to have leave. Summary judgments under order XXXVII should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The court should not reject the defence or the defendant merely because of its inherent implausibility or its inconsistency."U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 5 of 7
Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
7. If the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be apparent that the defence taken by the defendant is "clearly illusory". Had the defence of the defendant been plausible, then he should have placed on record some police complaint lodged by him at or around the time of execution of aforesaid cheques. A perusal of the documents on record by the plaintiff shows that the aforesaid cheques were dishonoured for "insufficient funds" on 28.06.2010, i.e almost six months prior to defendant filing a complaint U/s 156 (3) Cr.P.C in the court and moresoever, there is no police complaint on record filed by the defendant to substantiate his aforesaid claim. The learned counsel for the plaintiff submits that the aforesaid complaint case was filed by the defendant only after receiving summons/notice in the case U/s 138 N.I Act filed by the plaintiff. In this case, I do not find any defence worth the name raised by the defendant. The defence on the face of it appears to be sham, moonshine and illusory. Therefore, I have no hesitation in holding that there is no triable issue in the leave to defend application. The leave to defend application accordingly stands dismissed.
8. I have perused the original documents. The suit is within the period of limitation.
9. Accordingly, the suit of the plaintiff is hereby decreed with following reliefs:
U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 6 of 7
Suit No.55/2012 (Surjeet Singh V/s Anil Kumar Yadav) DOD: 04.09.2012
(a) A money decree in the sum of Rs.13,00,000/ (Rupees Thirteen Lakhs Only) as principal amount;
(b) Pendentelite and future interest @ 9% per annum from the date of institution of suit till realisation thereof and;
(c) Costs of the suit.
10. Decree sheet be prepared accordingly. File be consigned to
Record Room.
Announced in the open Court (Vinod Yadav)
on 04.09.2012 Addl. District JudgeIV/SW District,
Dwarka District Court: Delhi
U/o 37 CPC (Cheques): Leave to Defend Dismissed: "Decreed" Page 7 of 7