Delhi District Court
Cs (Comm) No. 147/19 vs Mr. B.N.V. Lalith Krishna on 6 February, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) No. 147/19
M/s Sony India Pvt. Ltd.
Through its authorized Representative
Sh. Gurmeet Singh,
A18, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi110044
......... Plaintiff
VERSUS
Mr. B.N.V. Lalith Krishna
Proprietor of M/s Unique Automation Systems
Having its office at:
19325/4, 2nd Floor, Ramnagar Gundu,
Vidya Nagar, Hyderabad500044 ...... Defendant
Date of Institution : 02.07.2019
Date when final arguments heard : 06.02.2023
Date of Judgment : 06.02.2023
JUDGMENT
1. Vide this judgment, I shall decide the application for leave to defend filed on behalf of defendant.
2. Brief facts of the case is that the plaintiff is engaged in the business of sales and marketing of consumer audio-visual electronics, I.T. products CS (Comm) 147/19 Sony India Pvt. Ltd. Vs. M/s Unique Automation System pg. 1 of 5 and various products to the defendant and. During the court of work, plaintiff supplied various products and raised following invoices :-
S.No. Invoice No. Date ID No. Due Date Amount (in
Rupees)
1. 1675075 11.08.2015 43025022 26.09.2016 1,19,999/-
2. 16718785 12.09.2015 43028334 28.10.2015 1,19,999/-
3. 16720264 25.09.2015 43029695 10.11.2015 15,24,145/-
Total 17,64,143
3. Defendant duly received the goods and after adjustments in above listed invoices issued cheque dated 14.06.2016 for an amount of Rs.17,28,913/- drawn on HDFC Bank, Hydrabad, Andhra Pradesh. However, the said cheque dishonored on presentation on account of the reason "Drawers Signature Differs". Thereafter, legal demand notice dated 04.06.2016 was also sent through the registered post, however, despite receiving the notice no payment was made pursuant to which the present suit was filed.
4. The summons u/O 37 CPC were issued on 15.07.2019, pursuant to which the defendant entered the memo of appearance, consequently, summons for judgment were issued.
5. An application / petition u/O 37 R 3 (5) CPC for leave to defend filed by the defendant. In this application for leave to defend, the defendant pleaded that the plaintiff has issued legal notice dated 04.07.2019 on dishonored cheque which was replied. The said reply was acknowledged by plaintiff but no rejoinder was made, however, pursuant to this a cheque CS (Comm) 147/19 Sony India Pvt. Ltd. Vs. M/s Unique Automation System pg. 2 of 5 bounce case u/s 138 NI Act was filed. It is also mentioned in the reply that alleged transaction are disputed and there is no due or legal liability, the cheque was received by the plaintiff as a collateral security, the series of cheques were issued and present cheque was presented with unjustified and ulterior motives. It is stated that triable issues are involved therefore the defendant be granted unconditional leave to defend.
6. Ld. Counsel for plaintiff submits that the defendant not filed any document to substantiate pleas in leave to defend. The bald defence could be relied upon. Mere pendency of u/s 138 of NI Act do not obsolve the the defendant from the civil liability.
7. Ld. Counsel for plaintiff submits that cheque in question of Rs.17,28,913/- was paid in discharge of alleged liability which was dishonored, triable issue is not made out. Ld. Counsel submits that no substantial defence was raised by the defendant. Therefore, leave to defend be refused. (relied upon IDBI Trusteeship services Pvt. Ltd. Vs. Huntown Ltd.; AIR 2016 SC 5321, Anil Tyagi vs. S.D. Infosys 210 (2014) DLT 678). Ld. Counsel for plaintiff submits that defendant admitted the cheque but, raised the plea of security cheque but not able to substantiate the said fact (relied upon Ashok Commercial Enterprises vs. Parekh Aluminex Ltd, III (2014) BC 361(Bom) MANU/MH/1296/2014, Shantanu Acharya vs. Whirlpool of India Pvt. Ltd. 2012 VIII AD (Delhi) 645 MANU/DE/5284/2012). The defendant not entitled for leave to defend and decree be passed against the defendant.
8. Ld. Counsel for defendant submitted that the present cheque is not CS (Comm) 147/19 Sony India Pvt. Ltd. Vs. M/s Unique Automation System pg. 3 of 5 issued in discharge of any liability. The liability is disputed and cheque in question being security cheque misused, thus triable issues are made out therefore the defendant is entitled for leave to defend.
9. Arguments heard. Record perused.
10. The object of an order 37 CPC suit is that on the basis of documents specified therein the liability towards the plaintiff is admitted. Only when the liability which is admitted in the dishonoured instrument or in the written document containing a liquidated demand as payable to the plaintiff, suit can be filed under order 37 CPC.
11. It is stated by the plaintiff that during the course of the business material supplied and in discharge of liability impugned cheque was issued which on presentation got dishonored. In this regard the plaintiff rely upon the invoices raised, the statement of account of the plaintiff company, impugned cheque dt. 14.06.2016, return memo and legal notice. The defendant though in leave to defend raised the plea that this cheque is taken prior to the transaction and issued as a collateral security and misused by the plaintiff, but for substantiating the same defendant has not filed any document. The defendant even not filed in present proceedings 'reply' to legal notice of the plaintiff in which this plea is raised. Mere bald statement of this nature is not sufficient for grant of leave to defend.
12. The impugned cheque was dishonored on 17.06.2016 and the suit is to be filed within three years. The three years time got expired on 16.06.2019, however, there are summer holiday and the court opened on 1 st CS (Comm) 147/19 Sony India Pvt. Ltd. Vs. M/s Unique Automation System pg. 4 of 5 July, 2019, the present suit filed on 1st July, 2019 i.e. within limitation.
13. The plea raised by the defendant in application for leave to defend is not substantiated through any document. The plea of security cheque and misuse is raised in vague manner without substantiation. Mere plea of security cheque is not sufficient to grant leave to defend. The defendant unable to disclose any substantial defence and no triable case is made out.
14. Hence, in view of the totality of aforementioned reasons, this Court is satisfied that defendant has no substantial defence and has not raised any triable issues, therefore, leave to defend is refused and plaintiff is entitled to the judgment forthwith. In the result, a decree is hereby passed in favour of plaintiff and against the defendant for a sum of Rs.17,28,913/- with interest @ 9% per annum with effect from date of filing of suit till its realization alongwith costs. Decree sheet be drawn up accordingly. File be consigned to record room.
Announce in the open court on 06th February, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts 03), SE/Saket Courts/Delhi CS (Comm) 147/19 Sony India Pvt. Ltd. Vs. M/s Unique Automation System pg. 5 of 5