Himachal Pradesh High Court
M/S Himachal CoOperative Non ... vs Shri Raj Kumar Mittal And Another on 20 November, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OMP No. 175 of 2018 in CS .
No. 22 of 2018 Reserved on: 2.11.2018 Decided on : 20.11.2018 M/S Himachal Cooperative Non Agriculture Thrift and Credits Society Limited .....plaintiff/nonapplicant.
Versus Shri Raj Kumar Mittal and another ....Defendants/applicants.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the plaintiff/nonapplicant: Mr. B.C Negi, Sr. Advocate with Mr. N.K Bhalla and Mr. Dalip K Sharma, Advocates.
For the defendants/applicants: Mr. P.S Goverdhan, Advocate.
Sureshwar Thakur, J This order will dispose of an application, cast under the provisions of Order 37 Rule 3 (5) of the Code of Civil Procedure, as, moved before this Court, by the defendants/applicants(hereinafter referred to as the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 27/11/2018 22:55:46 :::HCHP
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"defendants"), wherethrough, they seek hence leave to defend .
the summary suit, instituted by the plaintiff/nonapplicant (hereinafter referred to as the "plaintiff").
2. The plaintiff has instituted the instant suit, cast under the provisions of Order XXXVII, of the Code of Civil Procedure, seeking therethrough, the, recovery of suit amount. An averment is embodied in the plaint, qua the plaintiff being a duly registered cooperative Society, registration whereof, is, entered at Sr. No. 687, in the apt records, maintained by the Registering Authority concerned.
The plaint has been instituted by the duly authorized representative of the society. The suit has been drawn, on, anvil of cheque bearing No. 644525 of 6.11.2016, drawn on State Bank of India, Solan, embodying therein a sum of Rs.
47,00,000/, cheque whereof, upon, its presentation before the Bank concerned, was refused to be honoured, on account of "
Drawer sign not as per mandate". Photocopy of the Cheque is appended with the plaint as Annexure P3. In sequel thereto, the apt statutory notice was served, upon, the defendants.::: Downloaded on - 27/11/2018 22:55:46 :::HCHP
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Notice whereof, is, borne in Annexure P5, and, upon the .
defendants not meteing compliance thereto, a complaint embodied, in Annexure P6, was, instituted before the Court of Judicial Magistrate, Ist Class, (II), Solan. Clause (a) of Paragraph 5 of the plaint, details the amount(s) taken as loan,
3. to by the defendants, from the plaintiff.
Succinctly, the dishonored cheque borne in Annexure P3, is, espoused to be carrying hence sum(s) of money arising, towards a legally enforceable debt. The plaintiff, through the instant plaint, cast under the afore provisions, has, upon Annexure P7, Annexure whereof comprises a notice issued by the defendants, hence, reared a vehement contention, before this Court, (i) that the recitals borne therein, being, readable as admission(s) of the defendants, visavis, issuance, of, the afore dishonored negotiable instrument, borne in Annexure P3, being towards a legally enforceable debt, hence, a verdict rather summarily decreeing the plaintiff's suit being pronounced, upon, the plaintiff.
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4. When notice was served, upon the, defendants, the .
instant application, cast under the provisions, of, Order 37 Rule 3(5) of the Code of Civil Procedure, stood instituted before this Court, by the defendants, wherethrough, they seek leave of the Court, to, defend the suit, and, obviously espousals' contrary to the ones embodied in the plaint, stand reared therein. In paragraph 2 of the afore OMP, a contention is reared qua some borrowings, being made by the defendants, from the plaintiff society, and, the entire borrowings being liquidated, by the defendants, and, also disclosures rather holding concurrence, with, the afore averment, hence, also occur in the apt statement, of, account prepared up to 31.3.2016. A further averment is borne therein qua liquidation of the loan amount being made, either, through RTGs or through cheques, hence, per se, the defendants contest, that, the apt liquidation not occurring through cash payments. A denial is borne in afore OMP qua the amount embodied in the cheque aforesaid, being, not realizable, from, the defendants, ::: Downloaded on - 27/11/2018 22:55:46 :::HCHP ...5...
hence, the suit being not maintainable, for, its being hence .
summarily decreed.
5. A contention, visavis, the suit being not maintainable, within, the ambit, of, Section 72 of the Himachal Pradesh Cooperative Societies Act, 1968, is, also reared, conspicuously qua the condition setforth therein, remaining uncomplied with, by, the plaintiff. Further more, the afore dishonored cheque, is, contended by the defendants to be a part of a series of blank security cheques, issued, by the defendants, to, the plaintiff before March, 2016. Moreover, it is also contended, that, the issuance thereof being under pressure standing exerted, upon, one Raj Kumar Mittal, by one Chander Pal, Secretary of the Society. Also the details occurring on the back side of the cheque, are, averred to be made by the plaintiff, as such, the cheque is alleged to be forged. A cheque in addition, from one amongst, the series of blank cheques, and, carrying a sum of Rs. 9 lacs, stands contended to be presented for encashment by M/S A.R Associates, of which one Raj Kumar, is, stated to be a partner.
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Moreover, the defendants also aver, in, the afore OMP, qua .
forbidance being made upon one Chander Pal , from, making misuse of certain blank cheques, A notice is stated to be issued on 10.6.2016, whereunder, a request for returning, the, security cheques, was made. However, it is further averred instant summary suit.
r to that the plaintiff failed to do so, rather, he has instituted the
6. The plaintiff meted reply to the application, and, contended that given the averments, made, in the summary suit, and, with the afore rendered admission, of, the defendants, rather renders the suit amount, to be an undisputed claim, and, with the extant summary suit being backed, by an apparent statutorily holistic purpose, and, also with the instant suit, hence satiating, all thereof apt statutory ingredients,(i) thereupon the espoused leave being granted to the defendants, would rather render the afore holistic statutory purpose hence being defeated.
7. In opposition to the statement of account, appended with the application, the, plaintiff has appended with its apt ::: Downloaded on - 27/11/2018 22:55:46 :::HCHP ...7...
reply, hence Annexure R1, annexure whereof, comprises the .
statement of account appertaining, to, the period from 1.4.2015 to 31.3.2017, wherethrough, rather ,the, disclosures borne in the prior thereto statement of account, ending up to 31.3.2016, hence stand negativated.
8. The defendants while meteing rejoinder to the reply furnished by the plaintiff, contended, that Annexure R1 appended with the reply to the afore OMP, is, bereft of any vigor, and, is a false document.
9. Before proceeding to determine, the, validity of the aforesaid submissions addressed before this Court, by the learned counsel for the parties, it is deemed incumbent, to bear in mind the expostulations of law, as are enjoined to be applied thereon, for hence making a conclusion, qua, the espoused leave being accordable or refusable. The trite expostulations of law, are, embodied in a judgment rendered by the Hon'ble Apex Court in Case titled as Sunil Enterprises and another versus SBI Commercial & International Bank ::: Downloaded on - 27/11/2018 22:55:46 :::HCHP ...8...
Ltd., reported in (1998)5 SCC 354, whereunder the Hon'ble .
Apex Court, has set forth the hereinafter extracted expostulations of law: "4(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 imposing the condition that the amount claimed should be paid into Court or otherwise secured."
10. The afore expostulation of law are further elaborated and reiterated, in a judgment rendered, by the Hon'ble Apex Court in case titled as State Bank of Hyderabad versus Rabo Bank, reported in (2015) 10 SCC 521, relevant paragraphs 15 to 17 whereof are extracted hereinafter: "15. As regards the entitlement of a defendant to the grant of leave to defend, the law is well settled long back in the year 1949 in Sm. Kiranmoyee Dassi Vs. Dr. J. Chatterjee, AIR 1949 Cal 479, in the form of the following propositions:
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 the judgment and the defendant is entitled to unconditional leave to defend.::: Downloaded on - 27/11/2018 22:55:46 :::HCHP
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If the defendant raised a triable issue indicating that .
he has a fair or bona fide 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.
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 made it clear that he has a defence, yet, shows such a stage 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.
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.
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 ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...10...
give leave to the defendant on such condition, and .
thereby show mercy to the defendant by enabling him to try to prove a defence.
16. It is also noticed that the law as enunciated above, has been followed by the Courts in several cases [See also : Santosh Kumar Vs. Bhai Mool Singh, AIR 1958 SC 321, Milkhiram (India) (P) Ltd. Vs. Chamanlal Bros, AIR 1965 SC 1698, Mechelec Engineers & Manufacturers Vs. Basic Equipment Corpn., (1976) 4 SCC 687 and Sunil Enterprises & Anr. Vs. SBI Commercial & International Bank Ltd. (1998) 5 SCC 354].
17. An analysis of the above principles makes it clear that in cases where the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiff's claim. Only in the cases where the defence set up is illusory or sham or practically moonshine, the plaintiff is entitled to leave to sign judgment."
11. For apt application(s), of, the inherent apt nuance, of, the afore expostulations of law, upon, the competing ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...11...
espousals hence reared by the plaintiff, and, for hence .
validating or invaliding them, rather also enjoins eruption, of, apt material personifying qua (a) an evident bonafide defence being reared by the defendants, whereupon, the defendants being enjoined to be granted, the espoused leave to defend; (b) qua the afore rearings of defence, within, the afore expostulations being not a positive good defence; (c) rather the espoused defence being both a bonafide or a reasonable defence, to the plaintiff's claim, (d), and, with imminent inference(s) being ensuable therefrom qua, upon, the defence being put to trial, there being every likelihood of emergence, of evidence, thereupon an apt inference being erectable qua the defendants hence rearing a bonafide or a reasonable defence;
(e) upon the defence being illusory or sham or practically moonshine, thereupon, the plaintiff being enjoined, to seek leave to sign the judgment, and, the defendants being dis entitled to seek leave to defend.
12. Further more, even if the afore expostulations of law, stand satisfied by the plaintiff, and, when hence the ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...12...
plaintiff is enjoined to be granted, leave to sign the judgment .
yet, the Court may proceed to protect the plaintiff, by allowing the defence, to proceed, yet subject, to, as a measure, of, mere clemency being bestowed, upon, the defence, comprised in the directions being made, upon, the defendants, to, give an adequate security, visavis, the suit amount. Within the ambit of the afore expostulated parameters of law, this Court proceeds to determine the factum, qua, the admission, if any, of the defendants, as embodied in the notice issued by the defendants, rather hence, boosting a firm conclusion, that, the amount borne in the dishonored cheque, being an undisputed amount, (i) hence for obviating the suit being put to a procrastinated trial, upon, the apt leave being meted to the defendants, (ii) thereupon this Court rather would proceeding to grant leave, to the plaintiff to sign the judgment, (iii) also, it is enjoined to make discernments, from, the afore rendered material qua whether the defendants rather satiating the afore parameters, whereafter, this Court may proceed to grant the espoused leave to it/him/them.
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13. The most pertinent documentary evidence, existing .
on record, whereon reliance is placed by the plaintiffnon applicant, to, contend that it carries apt admission(s), of, the defendants/applicants, is, embodied in Annexure P7, admission whereof occurs, in, the hereinafter extracted apt paragraph, borne in paragraph 1 thereof.
"That Shri Raj Kumar Mittal my aforesaid client being partner of first two concerns and being Director of two Private Limited Companies took loan on different dates from your society and company in order to advance business of the aforesaid concerns and companies. The said loans were taken in individual capacity and also as partner of the said concerns and companies. In order to secure repayment of loans taken on different dates Shir Chander Pal Aggarwal being officials of the Society and company used to take blank cheques signed by my said client and without filling the name of the society, company or any individual. However, whatever amount is used to be taken as loan was shown in the said cheques. My client also issued blank cheques duly signed by him in his individual capacity from his saving account which were handed over to Shri Chander Pal aforesaid. Further blank stamp papers duly signed by my client as partner of the aforesaid concerns and also in his individual capacity were obtained by your society ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...14...
and company and handed over to Shri Chander Pal .
official of the society and company."
14. However, subsequent thereto a recital occurs, in Annexure P7, that, certain blank cheques being handed over to one Chander Pal Aggarwal, and, from one amongst the afore blank cheques, a cheque carrying a sum of Rs. 9 lacs, standing presented on 9.6.2016 by one Amit Aggarwal son of Chander Pal Aggarwal, and, hence an echoing also occurs therein that the afore misdemeanor(s) of the son of Mr. Chander Pal Aggarwal, rather rendering open an inference, that the cheque at hand, being one amongst the blank chques, and, it not carrying any undisputed realisable or decreeable amounts' of money.
15. Further more, reliance is placed, upon, notice borne in Annexure P5, issued by the counsel for the plaintiff, and, served upon the defendants, conspicuously, prior to the institution of a complaint under Section 138 of Negotiable Instruments Act, espousals borne wherein, are, in concurrence with the recitals, borne in the complaint, and, with the ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...15...
defendants not meteing any reply thereto, hence subsequent .
thereto exculpating echoings, as, are borne in Annexure P7, being an afterthought, and, a sheer concoction, and, also not rendering hence effaced, the, effect of the afore sentence, occurring in paragraph 1 of Annexure P7.
16. Nowat is to be gauged, the respective efficacy(s) of the afore submission imperatively, on, anvil of the afore apt expostulated parameters,.
17. The dishonored negotiable instrument is issued, on, 6.11.2016, and, the statement of account, appended with the the application, rather appertains to the period much prior thereto, in as much, as, qua 31.3.2016. Consequently prima facie, the statement of account appended with the application, at hand, with disclosure occurring therein qua no loan amounts yet pending against the defendants rather is rendered insignificant. Also, any contest qua Annexure R1, appended with the plaintiff/nonapplicant's reply, conspicuously visavis, its authenticity may not be relevant.
Contrarily when it constitutes an authenticated copy of the ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...16...
statement, of, account, and, when, it, hence holds proximity, .
visavis, issuance of the dishonored negotiable instrument, (i) and, when it assumes an enhanced aura of validity given, upon, a combined reading of the apt disclosures' made therein visavis cheque borne in Annexure P3, and, with notice borne in Annexure P5, and, also, (ii) when its' issuance occurs in contemporaneity, visavis, issuances of cheque borne in Annexures P3 and of notice borne in P5 (iii) thereupon unveilings rather emerging qua interse congruity occurring interse all the aforesaid Annexures.
18. Reiteratedly, in making the aforesaid conclusion, the factum of notice, comprised in Annexure P5, remaining unreplied, by the respondent/plaintiff, thereupon the contents thereof, do acquire an aura of validity, (i) and, further more when it is issued in contemporaneity, visavis, statement of account, (ii) also, thereupon all the afore annexures acquire an alike aura of sanctity. Even though, Annexure P7 carries therewithin, the, afore extracted apt sentence, and, with the afore Annexure standing issued, on 10.6.2016, yet the effect of ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...17...
the afore sentence, does rather avail an inference, that, certain .
borrowings, being made by the defendants, from the plaintiff, and, for liquidation thereof, the defendants issuing cheques, and, the amount borne in the cheques rather remaining un liquidated.
19. Since the defendants hence rear a plea, that, all the liquidations hence occurring through, cheques or through RTGs mode, and, not through cash, (i) thereupon when Annexure R1 appended with the reply, does bear proximity visavis, issuance of the dishonored negotiable instrument, (ii) thereupon, the afore sentence occurring in Annexure P7, tantamounts to an admission qua the sums borne therein, being towards liquidation of outstanding borrowing, as, made by the defendants from the plaintiff.
20. Even otherwise the defendants primafacie appear to raise various submissions, that, certain security cheques being issued by them to the plaintiff, and, that the figures, and, the scribings occurring therein being, not, in his/their hands. However, the defendants did not adduce any evidence ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...18...
qua therewith, before, the learned trial Magistrate concerned .
nor any disclosures stand made, in the apt testification rendered therebefore, qua the afore trite fact, hence coming under contest. The further effect thereof, is, that the espousal occurring in paragraph 2 of Annexure P7, qua son of one Chander Pal Aggarwal, misusing a cheque for a sum of Rs. 9 lacs, comprised in his presenting it, before the Bank concerned, stands falsified, (i) besides for the reasons, that, it appertains to a period much prior to the period of issuance, of, the dishonored instruments, (ii) and, it carrying an amount lesser than the amount borne, in, the dishonored instrument, hence, also diminishes the vigor of the espousal, of, the defendants, (iii) predominantly also given despite the witnesses' concerned, of the plaintiff, while rendering testifications, before, the learned trial Magistrate concerned, hence making echoings' qua the apt statement of account being available (iv) yet the the defendants not making adduction(s) thereof before the Court, whereas the afore adduction of statements of accounts, would facilitate the ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...19...
Court, in, drawing an inference qua the defendants' admission .
being negatived or effaced, whereupon, nonadduction thereof, gives, rather strength to the afore admission.
21. Be that as it may, for all the assigned reasons, the defendants have abysmally failed, to, establish qua theirs holding a reasonable, fair and bonafide defence, and, also grossly failed, to, at this stage ,rear a ground that if the afore defence(s) are put to trial, theirs bringing forth hence evidence, (i) whereupon, an inference may be drawable of their defence, being workable or being genuine or holding sanctity, (ii) contrarily, thereupon it is to be concluded that the apt leave being refusable or unaccordable to the defendants.
22. The defendants contest qua with the apt statutory notice contemplated in Section 72 of the Cooperative Society Act, hence remaining evidently unissued,thereupon the suit being not maintainable. However, the aforesaid contention would gather weight, upon, the the defendants rather committing misconduct of criminal breach of trust, visavis, plaintiff's funds, and, hence his/theirs misconduct touching, ::: Downloaded on - 27/11/2018 22:55:47 :::HCHP ...20...
upon, the management and business of the plaintiff society.
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However the aforesaid evidence is amiss, contrarily when the defendant is a loanee, of, undisputed sums of money, thereupon, even when the statutory notice remained un served, prior to the institution of the instant summary suit,
23. to yet, apt leave being grantable rather to the plaintiff.
Further more, the aforesaid defence is illusory or moonshine, and, further if given the afore expostulated condition precedents for, hence the apt leave being granted, when remain hence unsatisfied, thereupon, the, statutory holistic purpose, would rather be defeated, upon, the suit being put to the rigors, of, a procrastinated trial.
23. In view of the above, the application stands disposed of.
20th November, 2018 ( Sureshwar Thakur ),
(priti) Judge.
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