Delhi District Court
Causes CourtCumGuardian Judge vs Sh. Neeraj Conductor on 7 March, 2020
In the Court of Additional Senior Civil JudgecumJudge Small
Causes CourtcumGuardian Judge, NorthWest District, Rohini
Courts, Delhi
Presided by : Ms. Susheel Bala Dagar
CS No. 923/19
Sh. Pawan Kumar
S/o Sh. Sube Singh,
R/o Village Bichpari, Tehsil Gohana,
District Sonipat, Haryana131301. ......Plaintiff
Versus
Sh. Neeraj Conductor
S/o Not Known,
R/o House No. 104, BlockA,
Haryana Complex, Shalimar Bagh,
New Delhi ......Defendant
Date of Institution : 06.07.2019
Date on which judgment was reserved : 07.03.2020
Date of pronouncing judgment : 07.03.2020
SUIT FOR RECOVERY OF Rs. 2,00,000/ ALONGWITH
PENDENLITE & FUTURE INTEREST UNDER ORDER 37 CPC
JUDGMENT
Brief facts of the present case are as under :
1. In around May 2017, the defendant had approached the plaintiff for grant of a friendly loan due to personal and household demands to the extent of Rs.2,00,000/ and the defendant had categorically assured the plaintiff that the loan is required for a short period of four months only. The plaintiff had advanced a loan of Rs.2,00,000/ to the defendant on 16.05.2017 through his bank account with the condition to return the same within a period of four month. But after passing of four months the CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 1 of 10 defendant failed to make the payment to the plaintiff. The plaintiff made many telephone calls as well as sent text message to the defendant but the defendant did not give any response to the plaintiff. Thereafter, as per the settlement between the plaintiff and the defendant, the defendant visited on 07.11.2017 at the home of plaintiff and issued a cheque bearing no.
092687 for a sum of Rs. 2,00,000/ drawn on State Bank of India, Branch Nirankari Colony, Delhi.
2. The plaintiff presented the said cheque in his account on 13.12.2017, but the same was dishonored with remarks "payment stopped by drawer". Thereafter the plaintiff informed the defendant about the dishonor of the cheque. The defendant assured the plaintiff to present the cheque once again. The plaintiff again presented said cheque in his account but the said cheque was returned dishonored with the remarks "payment stopped by drawer". The copy of the return memo dated 04.01.2018 is annexed. Thereafter, the plaintiff sent a legal notice to the defendant on 22.01.2018 through speed post and the same was served upon to the defendant and the defendant neither made the payment to the plaintiff and nor gave any reply. Copy of the notice dated 22.01.2018, is annexed. The defendant is residing within the local jurisdiction of the Court. Hence, the present suit has been filed.
3. On being served with the summons, the defendant put his appearance under Order 37 Rule 3 CPC. Thereafter, the summons for judgment was issued.
4. Defendant filed leave to defend under Order 37 Rule 3 (5) CPC whereby he pleaded that a friend of defendant namely Shri Ankit s/o Shri CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 2 of 10 Mahender Singh r/o New Police Colony, Shalimar Bagh, Delhi had to take loan from a chemist namely Mr. Ashok Kumar S/o Shri Net Ram, proprietor of Om Medicos, shop at Haiderpur main road, Shalimar Bagh, Delhi. Defendant being the friend of Mr. Ankit had assured said Ashok Kumar for return of loan of Rs. 2 lakhs and handed over cheque in question as a guarantor to said loan. The said cheque in question was only bearing the signature of defendant, and rest entries were blanked. Later Shri Ankit had paid the entire loan amount to Mr. Ashok Kumar and in lieu he has returned the said security cheque in question to Shri Ankit. When Shri Ankit came to return the cheque in question to the defendant he had lost the same in society of defendant. The defendant had immediately move application of stop payment of said cheque to his banker on 23.06.2017. The defendant had never taken any loan from the plaintiff at any point of time. The plaintiff and defendant are well known to each other. The plaintiff had got the said misplaced cheque in question and filled the other blank entries in his favour and gets it bounced. The plaintiff has misused the said cheque.
5. It is submitted that the instrument/ document i.e. cheque in question filed on record by the plaintiff is not original one in fact it is certified copy. The cheque in question has been filled in different writing viz in favour of, amount in wording and date. No proof of payment of loan has been filed on record to show that defendant had taken any loan from the plaintiff. No proof of bank transaction has been filed on record by the plaintiff. There is no proof of text message or telephone made to defendant by the plaintiff.
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6. The defendant is doing the work of conductor under the Haryana roadways and his duty is on long distance route, he takes about 3 to 4 days of the said route. The defendant had not handed over the said cheque to the plaintiff on the said date i.e. 07.11.2017 as alleged by the plaintiff. Further, another application under Section 5 Limitation Act r/w Section 151 CPC seeking condonation of delay in filing the leave to defend application has been filed by the defendant. It is submitted that the wife of the defendant has received summon for judgment only on 25.10.2019 who informed the defendant telephonically as he was out of station on duty and returned only on 27.10.2019. After receiving the said summons from wife on 27.10.2019, on the next date 28.10.2019, the defendant immediately contacted his Counsel and apprised about summon for judgment. The Counsel for the defendant prepared the application of the leave to defendant as per instructions and facts apprised by the defendant. It was decided by the Counsel to file the same on 04.11.2019. On that day, unfortunately, the strike was called by the lawyers in Delhi and litigants were not allowed in the Court premises. The defendant as well as his Counsel were not able to file the application for leave to defend on 04.11.2019. Thereafter also the litigants were also not allowed to come in the Court premises. Only on 11.11.2019, the litigants were allowed to enter in the Court premises. The defendant has filed his leave to defend, but the affidavit could not be attested, due to nonavailability of oath commissioner. The application for leave to defend has been delay only 6 days, due to aforesaid reasons and hence this application for condonation of delay for the aforesaid 6 days.
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7. In reply to the application seeking leave to defend, the plaintiff has stated that the application of the defendant seeking leave to defend is hopelessly barred by time. It is submitted that the said original cheque has already filed before the concerned judicial magistrate at Gohana, Haryana. It is submitted that the cheque in question was already filled and has been given to the plaintiff. It is submitted that the defendant had taken a loan from the plaintiff and handover the cheque (proof of the loan) to the plaintiff for discharge of his legal and legitimate liability. It is submitted that the plaintiff has given the loan to the defendant after withdrawing the cash from his bank account.
8. Arguments Heard. Case file perused. It is argued by Ld. Counsel for the plaintiff that order 37 Rule 3 (7) CPC provides specifically for condonation of delay in filing of the WS so Section 5 of the Limitation Act is not applicable.
9. As far as the application of condonation of delay in filing the leave to defend is concerned, the said application is treated under Order 37 Rule 3 (7) CPC. It is admitted by both the parties that advocates were abstaining from work from 04.11.2019 to 16.11.2019. It is also admitted that even litigants were not allowed to enter the Court premises upto 11.11.2019. It is also admitted that even oath commissioners were not available for attesting the affidavits of the litigants. In these circumstances, there is sufficient cause shown by the defendant explaining the delay in applying for leave to defend the suit. Hence, the delay in filing leave to defend as mentioned above stands condoned.
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10. The law with regard to granting of leave to defend is well settled as held in Mechelec Engineers Vs. M/s Basic Equipment Corporation 1977 AIR 577, 1977 SCR (1) 1060 by Hon'ble Supreme Court that Court can grant leave to defend the petition when the defendant raises triable issues. If the defendant shows that on a fair probability he has a bonafide defence, he ought to have leave. The following principles apply for leave to defend u/o XXXVII CPC: (A) If the defendant satisfy the Court that he has a good defence to the claim on its merits the plaintiffs is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (B) If the defendant raise 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 has a defence, yet shows such a state of facts as leads to the inference that at the trials 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 of furnishing security.
CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 6 of 10 (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.
(E) If the defendant has no defence of the defence is illusory of sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign the 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 given leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence.
11. In the present case, the plaintiff has placed on record the certified copy of the cheque bearing no. 092687 dated 07.11.2017 for Rs. 2,00,000/ drawn on SBI, Nirankari Colony Branch, Delhi alongwith certified copy of the cheque return memo dated 04.01.2018. Further, plaintiff has also relied upon the copy of the legal notice dated 22.01.2018. The plaintiff has submitted that the original cheque and the return memo has been filed in CIS No. COMA75/18 in the case title Pawan v. Neeraj which is filed before the Court of Ld. Civil Judgecum JMIC, Gohana, Haryana. All the above documents duly support the version of the plaintiff. In Oriental Insurance Co. Ltd. v. Meenakshi Khosla 2012 (130) DRJ 319, it has been held that if the legal notice was duly sent on the correct address of the defendant, the same is deemed to CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 7 of 10 be due service. The legal demand notice bears the address of the defendant.
13. On the other hand, the defendant has not filed any document to show that the cheque in question was not given by him to the plaintiff. Even though, it is submitted by the defendant that the cheque in question was given by him as a guarantor for his friend namely Shri Ankit s/o Shri Mahender Singh r/o New Police Colony, Shalimar Bagh, Delhi who had to take loan from a chemist namely Mr. Ashok Kumar S/o Shri Net Ram, proprietor of Om Medicos, shop at Haiderpur main road, Shalimar Bagh, Delhi. However, no documents of any such loan has been placed on record by the defendant. Even though, it is alleged that the said Shri Ankit had paid the entire loan amount to Mr. Ashok Kumar and in lieu he has returned the said security cheque in question to Shri Ankit, however, no documentary proof regarding the payment of the alleged loan or returned of the alleged security cheque has been produced by the defendant. The submissions regarding the alleged loan and the alleged security cheque to Shri Ankit are found to be vague as not supported any documentary proof. Further presumption under Section 139 of the Negotiable Instrument Act is in favour of the plaintiff that the holder of the cheque received the cheque for discharge of legally enforceable debt or other liability. Further presumption under Section 118 of the Negotiable Instrument Act also lies in favour of the plaintiff and the said presumption has not been rebutted by the defendant.
14. The defendant has admitted his signatures on the cheque in question. However, defendant has stated that the same to be a security CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 8 of 10 cheque given to Shri Ashok Kumar proprietor of Om Medicos, which assertion has not been supported by any document. As the defendant himself has admitted his signatures on the cheque in question of which the plaintiff is the holder, it is presumed that the said cheque was given against liability. The dishonor of the cheque is not disputed by the defendant. Regarding his liability defendant has only stated that he gave a blank signed security cheque, the said defence is also found to be moon shine.
15. In the judgment titled as "Jammu and Kashmir Bank Vs. Abhishek Mittal", CRL A. No. 294/2011 decided on 26.05.2011, the Hon'ble High Court has held that ;
"Para 6: ... The plea taken by the respondent that the blank cheques had been given by him is of no consequence. Respondent has admitted his signature on the cheques. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him..."
In such circumstances, it is presumed that the said cheque was issued for discharge of the liability towards the person to whom the cheque was issued.
16. Therefore, in view of the judgment mentioned above, the contention CS No. 923/19 Pawan Kumar v. Neeraj Conductor Page No. 9 of 10 of the defendant that he gave security cheque towards loan of his friend namely Ankit is not found tenable.
17. In view of the discussions above, it is found that the defendant has no defence and the defence set up by defendant in his application for leave to defend is illusory and sham and practically moonshine, therefore, the defendant is not entitled to leave to defend. Accordingly, the plaintiff is entitled to judgment forthwith.
18. The suit is within the period of limitation as well as within the pecuniary jurisdiction of this Court.
19. Considering the present facts and circumstances, the Court deem it appropriate to grant the interest @ 8% per annum from the date of institution of the suit till the realization of decreetal amount. Accordingly, the suit of the plaintiff is decreed for the sum of Rs. 2,00,000/ along with interest @ 8% per annum from the date of filing of the suit till realization of the decreetal amount. The plaintiff is also entitled to costs. Decree sheet be prepared after deposition of deficit Court fees, if any.
File be consigned to Record Room.
Announced in open Court (Susheel Bala Dagar)
on 07th Day of March 2020 Additional Senior Civil Judge cum
Judge, Small Causes Court cum
Guardian Judge,
NorthWest District, Rohini, Delhi
(This judgment contains 10 pages.)
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