Delhi District Court
Judge Small Cause ... vs Manish Kanojia on 23 May, 2020
In the Court of Ms. Niti Pilulela
Judge Small Cause Court-Curn-AdditIonal Senior Civil Judge/ Guardian
Judge. (Last District). Karkardooma Courts, Delhi,
C.S. No. 797/18
Sh Akash
Radhey Shyam
Pin 0,28. Street no,1,
laxi-ni Nagar, Delhi r).i. Plaintiff.
VERSUS
Manish Kanojia
Sfi ()lip Kumar
14/o 22/2, Gali no., 4,
Kishan Kuni Ext, Part-I,
laxmi Nagar, Delhi-92 Defendant.
Date of Institution 16.08.2018
Date of reserving of Order 03.03.2020
Date of Order 23.05.2020
Civil Suit under Order XXXVII of Code of Civil Procedure for Recovery
of amount of Rs.2,00,000/- along with pendente lite interest and future
interest @ 24% PA.
ORDER
1. Vide this order, I shall decide the applications hied by defendant for grant of leave to defend the pre sent suit and for condonation of delay in filing the said application.
2. In the application hied by defendant for condonation of delay it is stated that defendant was served on 03.01,2019. He was required to file the leave to defend application till 13.01.2019 but he was unwell t and had fever, due to which, he was not able to file the said application within time Later on. due to financial crisis, he was not able to pay to counsel and ultimately he was able to contact his counsel on L2. r72 2019 Thereafter, the leave to defend application was drafted and was filed on 19.02.2019 which was supported with medical certificate of defendant.
3. In reply to the said application, plaintiff has opposed the said application on the ground that the medical certificate which has filed by defendant shows that he was unwell from the period 07.01.2019 till 13.01.2019. He has not been able to explain that what he was doing after 13.01.2019 till filing of the said application. He has stated that as defendant has not given strict proof of the same, therefore, the said application should not be allowed.
4. Arguments were addressed. Heard. Record perused. S After hearing the arguments and considering the record, this court is of the view that it is matter of record that defendant was served on 03.01.2019. Considering the medical certificate, it can be presumed and believed that he was unwell till 13.01.2019. There is nc reason to disbelieve his version. Hence, the said period can be fairly excluded from the limitation period as 'sufficient cause' is shown for not filing the application till that period.
6 Thus, defendant is required to explain that why there was delay in filing the said application from 14.01.2019 till 19.02.2019. For explaining the said period, defendant has stated that he was facing financial crisis. Though, this explanation given is not supported with has been shown by plaintiff on the part any document but no maraficie o clef encJant to defeat his rights.
7 At this stage, it is pertinent to mention the iudgment in case titled Goya! Mg Gases Ltd v. Premium International Finance 138 (2007) Ott 259 es under ,
- 15. Having given my considered thought to the submissions made on behalf of both parties, I find that the law provides a stringent time bound schedule to be followed by the parties for taking different steps while Prosecuting and defending a suit which has been filed under Order 37 of the CPC. The procedure provided is summary and aimed at expeditious adjudication and disposal of the suit. Undoubtedly, dalliance of the defendant cannot be countenanced and negligence would defeat any assertion of bona fide. However, it Is well settled that rules of procedure are handmaiden to the ends of Justice and cannot be permitted to defeat the substantial rights of the parties"
B. Hence, in view of the above said judgment, though there is delay of 35 days in filing the leave to defend application but considering the fact that bona fide ground of financial crunch to pay the tees of counsel is taken, thus principles of natural justice demand that defendant should be given opportunity to raise his defence failing which his substantive rights shall be defeated which will go against principles of equity and fairness. Accordingly, the application for condonation of delay in filing the leave to defend application is allowed. The delay in filing leave to defend application is hereby condoned.
9. Now the application of defendant for grant of leave to defend the present suit shall be taken up. Before deciding the averments of defendant in the said application, it is relevant to mention the brief facts of the case.
10. It is the case of plaintiff that defendant is close friend of his younger Op brother and as he was in need of sum of Rs.2 lakhs, therefore he approached plaintiff for the said purpose. On the recommendation of Vouh8err brother of plaintiff, plaintiff advanced sum of Rs. 2 lakhs in cash on 10.02.2017 to defendant In presence of Sit, Ummed Singh Munoth, After one year, plaintiff asked for return of the same amount.
In discharge to the said liability, defendant issued a cheque bearing no.
2O9(4/ tit 15,02,2011 for sum of Rs 2 lakhs drawn on Canard Bank, Lawn Nagar Branch. Plalittiriff presented the said cheque in his bank but the same got dishonored for the reasons "other reason (account dormantron 23 04.7.018. Plaintiff again asked to repay the said amount to which defendant requested the plaintiff to present the said cheque again, which was done on 20.05.2018 but the same got dishonored due to the reason Instrument outdated/stale" on 01.06.2018. Therefore, despite various request and reminders no payment was made, Hence plaintiff Issued a legal notice dt 07.06.2018 but the same was neither replied nor the payment was made. Hence, present suit has been filed by plaintiff under Order XXXVII, on the basis of above said cheque.
11. In the application filed by defendant, he has alleged that he had taken sum of Rs. 15,000/- as loan from plaintiff on 18.10.2017 for period of 12 months which ended on 17.10.2018 and the said amount was paid in cash to the plaintiff on 20.09.2018. It is stated that defendant had given a blank cheque as security to repay the aforesaid loan of Rs, 15,000/- by merely signing the sante without filing in the contents, date, amount and name of payee on the cheque. It is also stated that while making the repayment of the loan, defendant asked to return the said cheque but plaintiff avoided the same on the pretext that he had kept the same it r.orrm of hi: file,. which he will have to search and will try to Due to friendly relation and good terms, he t word: of plaintiff. However, as per defendant, plaintiff later 7,44 trsfore.:10! aext. Ne got So itroar t epo:fort the sax! /C2 1414r kst rt(Att.rtei tt4 summits from the pre4enr lot le,,t1 eppfit.Itor; was filed tpt tk* a .1 4 I. Vi."1 Els,sa 4 e.9 :r, is Med mere", to rr-mead the presert ., /1.-.71o: A west:on was to :1r ;charge thekiabit " ty ir"..elteCt, «east. Record fre-rused, 47 = "Aafit. 0, Primer:: to trwr.tx.-rb ifs judimer4 Hoeb:e 7.4;Vt:17.':4? rxf Wel,* in St1,1* ttlett 1081 Trusteeship Services Ltd vs Hi/blow/4 Ltd, decided 00 15 november, 2016 in Civil Appeol no.
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-fe 10 defend the soft (even if triable issues of o wbstattoot defence is raised), shall not be granted antes: the amount sn utitnittell to be due is depoPird by the defenoons court.
Hence, In the light. of the Awe said judgment, the facts of the present case are to be SCf mized.
IF ,. After going through the averments of both the parties, this court is of the view that neither any substantial or reasonable nor plausible or probable defence h.ay been raised by defendant and the grounds which ate raised in the court are frivolous and veirAtious for the undertine/following reasonv-
The loan transaction is admitted by defendant, though as per him the amount of loan is rnereiV Rs. 15,000/- and not Rs. 2 lakhs. This shows that there was some transaction between the parties.
per detcntiant, he had taken the loan on 18.10.2017 and repaid the :aloe ran 20.01.2018 in cash. No document is produced that when he had paid the said amount or he had taken any reteiving from the plaintiff or not, it is interesting to note that preSent case was filed by the plaintiff on 16142018. Defendant was served with summons for appearance on 0,1,09r/018. fte flied he. appearance in the court on 17.09.2018. Thus. if any pewment was Made oc „dtr on 20.09.2018, despite knowing the fact that suit was ,r, it questiOnable that why defendant had not informed the court at , firsi instance; secondly it also raises doubt that why payment was not 11;Ac: in ti, e court and lastly why no receipt was obtained from plaintiff. !raj Now corning to defence of cheque in question being a security cheque. In this regard. It is admitted case of defendant that there was a liability on his part which was existing as on 15.02.2018 i.e on the date of execution of cheque though as per 61 loan amount was only 15,000k. Thus, it can be said that it was drawn for consideration. Hence, presumption as to Liability can be raised as per Section 118 of Negotiable Instruments Act, 1881.
(iv) Even if, for the sake of arguments, the defense taken by defendant is taken into account that it was a security cheque and he had not filled the particulars of the cheque apart from signature, then also legal notice dt 07.06.2018 is available on record which was sent at the same address as mentioned in the plaint where defendant had been served. Therefore, if he had come to know regarding the presentment and dishonoring of the cheque in the month of lune 2018, itself, how and why he made the payment in the month of September 2018 is questionable.
Iv) The defence raised by defendant is also doubtful because though he has admitted the signatures on the cheque but the said signatures are clearly and apparently different from the signatures which he have put on the WS, on the medical certificate which he has annexed and on the other documents which he had filed on record. Hence, no reasonable defense has been raised to rebut the presumption under Section 118 of Negotiable Instruments Act, 1881, as to date, payee and amount of cheque.
Moreover, it is the ground taken by defendant that plaintiff had not returned the cheque despite claiming back the same. in this respect, no • ,,,,p t.i naton is givr41 that why he had not issued a notice to the plaintiff or 10,-ford a complaint against him for not returnIng the cheque in question. 17 Therefore, in the light of the judgment of the Hon'ble Supreme Court of India, Mn case titled !Dal Trusteeship Serwces Ltd (Supra) defendant has not raised any tribal issue and the defences which are raised. are frivolous and vexatious. He is thus not, entitled to any leave of this court to defend the present suit. Hence, the application for grant of leave of this court to defend the present suit filed by defendant is dismissed.
1B. Resultantly, the suit of the plaintiff is decreed for sum of Rs.2,00,000/-In the prayer clause, plaintiff has claimed pendente-lite interest @ 24% p.a. In my view, the rate of interest claimed by the plaintiff is excessive/usurious and in the facts and circumstances of the present case, the ends of justice would be met, it the plaintiff is granted oendente-lite interest at the rate of 9% per annum. The prayer for grant of future interest is declined in view of Order XXXVII Rule 2(3) of CPC, 1908.
19. Cost of the suit is awarded in favour of plaintiff. 20 Thus, it is ordered that the plaintiff shalt only be entitled to pendente-lite interest at the rate of 9% per annum on the sum of Rs.2,00,000/-.
21 Decree sheet be prepared accordingly.
file be consigned to record room after due compliance.
21,
(Mel P )
ASC.I-ctinvis(c.cq arcii3n Judge,
Cast, 11:1/.0 Courts, 6e6-421.05.2020