Delhi District Court
Sh. Avdesh Prasad Patel vs Sh. Sant Ram Khatana on 17 January, 2014
IN THE COURT OF MS. SALONI SINGH, CIVIL JUDGE - 03, PATIALA
HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI
Case No. 24/13
Unique Case ID no. 02403C0107332013
Sh. Avdesh Prasad Patel
S/o Sh. Vidya Prasad Patel,
R/o 19/9, Kishan Garh, Vasant Kunj,
New Delhi - 110070.
...Plaintiff
Vs.
Sh. Sant Ram Khatana
S/o Sh. Chiranjee,
Partner of Jai Ambe Associates,
Maruti Kunj Road, Near KIIT College,
Bhondsi, Gurgaon, Haryana
Also At :
Sh. Sant Ram Khatana
S/o Sh. Chiranjee
R/o Village & Post Khedla
Tehsil Sohna, Distt. Gurgaon
Haryana. ...Defendant
Date of Institution : 21.08.2013
Date of Reserving Judgment/Order : 04.01.2014
Date of Pronouncement : 17.01.2014
Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 1 of 15
Order on the application filed under Order XXXVII Rule 3 (5) of the
Code of Civil Procedure, 1908 in a suit for recovery of Rs. 2,75,100
(Rupees Two Lakh Seventy Five Thousand and One Hundred Only) along
with pendente lite and future interest from the date of filing of the present
suit till the date of realization and costs of the suit
Order:
1.The present suit is filed under Order XXXVII of Code of Civil Procedure, 1908 (for short "Code of Civil Procedure") for recovery of Rs. 2,75,100 (Rupees Two Lakh Seventy Five Thousand and One Hundred Only) along with pendente lite and future interest from the date of filing of the present suit till date of realization and costs of the suit.
2. The brief facts, as given in the plaint, are as follows: The defendant is a property dealer of the area comprising of Maruti Kunj Road, near KIIT College, Bhondsi, Gurgaon, Haryana. The plaintiff met the defendant for purchase of a small plot of a land in and around Gurgaon. The defendant showed the plaintiff three to four properties and thereafter a plot of land measuring 85 sq. yards was finalized @ Rs. 3,800/- (Rupees Three Thousand and Eight Hundred Only) per sq. yards, amounting to Rs. 3,23,000/- (Rupees Three Lakh and Twenty Three thousand Only) as the total price of the plot of land.
Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 2 of 15
3. The plaintiff paid an advance sum of Rs. 5,100/- (Rupees Five Thousand and One Hundred Only) on 28.08.2010. A copy of the advance receipt dated 28.08.2010 is attached to the plaint as Annexure-A. Thereafter, the plaintiff made payments to the defendant on various dates by way of cheque and cash during the period between 17.09.2010 to 22.10.2011. The details of the said payments amounting to Rs. 2,75,100/- (Rupees Two Lakh Seventy Five Thousand and One Hundred Only) are mentioned in the table below :
Date of Amount Mode of payment (Cash/cheque)
payment
28.08.2010 Rs. 5,100/- Cash
17.09.2010 Rs.45,000/- Cheque no. 526104, drawn on Vijaya Bank, Connaught Place, New Delhi.
18.09.2010 Rs.25,000/- Cheque no. 526107, drawn on Vijaya Bank, Connaught Place, New Delhi.
16.11.2010 Rs.25,000/- Cheque no. 526105, drawn on Vijaya Bank, Connaught Place, New Delhi.
18.02.2011 Rs.20,000/- Cheque no. 526114, drawn on Vijaya Bank, Connaught Place, New Delhi.
16.03.2011 Rs.35,000/- Cheque no. 526118, drawn on Vijaya Bank, Connaught Place, New Delhi.
08.05.2011 Rs.20,000/- Cash Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 3 of 15 25.08.2011 Rs.70,000/- Cheque no. 526120, drawn on Vijaya Bank, Connaught Place, New Delhi.
22.10.2011 Rs.30,000/- Cash
4. The payments were received by the defendant against acknowledgment by mentioning it on the advance receipt form along with his signature. Despite repeated requests by the plaintiff to issue proper receipts and execution of an agreement to sell, the defendant kept delaying the same on one pretext or another.
5. In the month of May 2012, when the plaintiff again requested the defendant to prepare the necessary documents, the defendant stated that the rate of the concerned plot of land had increased and the revised rate was Rs. 6,200/- (Rupees Six Thousand and Two Hundred Only) per sq. yards instead of Rs. 3,800/- (Rupees Three Thousand and Eight Hundred Only) per sq. yards. The plaintiff refused to pay at the revised rate as he could not afford the property and demanded that the defendant return all the money paid by him to the defendant.
6. After a meeting between the parties, the defendant agreed to return the money to the plaintiff. The defendant issued two post dated cheques, one in the sum of Rs. 30,000/- (Rupees Thirty Thousand Only), bearing no.
Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 4 of 15 789296 dated 01.06.2012, drawn on Corporation Bank, Maruti Kunj, Gurgaon and the other cheque in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only), bearing no. 000935 dated 28.08.2012, drawn on Corporation Bank, Maruti Kunj, Gurgaon. On presenting the said cheque, both the cheques were dishonored owing to insufficiency of funds.
7. The plaintiff sent a legal notice dated 24.11.2012 to the defendant for recovery of the due amount of Rs. 2,75,100/- (Rupees Two Lakh Seventy Five Thousand and One Hundred Only), to which the defendant did not reply. The defendant, thus, has failed to pay the amount due to the plaintiff.
8. In the application for grant of leave to defend under Order XXXVII Rule 3 (5) of the Code of Civil Procedure filed on behalf of the defendant, it is submitted that the present suit is not maintainable in its present form and does not fall within the provisions of Order XXXVII Rule 1 (2) of Code of Civil Procedure. Further, that the suit had been filed on the basis of false and fabricated grounds. The case of the defendant is that it was the defendant who had advanced a friendly loan in the sum of Rs. 3,00,000/- (Rupees Three Lakh Only) to the plaintiff in the year 2010. The plaintiff had promised to return the said amount within a period of one year with interest. When the defendant came to know that the plaintiff had taken the Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 5 of 15 said loan on the false pretext of his father's illness, the defendant asked the plaintiff to repay the loan amount. The plaintiff started repaying the loan amount in installments through cheques towards discharge of his legal liability towards the defendant. An amount of Rs. 2,20,000/- (Rupees Two Lakh and Twenty Thousand Only) had been paid by the plaintiff to the defendant. On the defendant asking the plaintiff to pay the remaining amount, the plaintiff started avoiding the defendant. That in turn the plaintiff had filed false civil and criminal cases against the defendant as a conspiracy to get rid of his own liability towards the defendant. The defendant had no liability towards the plaintiff. Thus, in view of the aforesaid grounds, the defendant is entitled to leave to defend the present suit.
9. In the reply, the plaintiff has denied all the allegations made in the application as false, frivolous, misconstrued, misconceived and highly scandalous. It is averred that the defendant has built up a completely different story before this Court in contradistinction to the criminal proceedings pending against the defendant under Section 138 of the Negotiable Instruments Act, 1881. It is stated that assuming without admitting that the plaintiff had taken a friendly loan from the defendant then why had the defendant received the payments on the advance receipt form for purchase of the plot of land. Further, the defendant was silent on Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 6 of 15 the two post dated cheques issued by the defendant in favour of the plaintiff. The case of the plaintiff is that the suit squarely falls within the classes of suit envisaged under Order XXXVII Rule 1 (2) of Code of Civil Procedure. The two post dated cheques issued by the defendant in favour of the plaintiff fall within clause (a) of Rule 1 (2) of Order XXXVII of Code of Civil Procedure under the category of a 'bill of exchange'. Further, it is averred that despite having received the legal notice, the defendant did not reply to the same amounting to admission of his liability towards the plaintiff. The plaintiff pressed for dismissal of the defendant's application for leave to defend with heavy costs as the grounds raised by the defendant were vague, vexatious and devoid of merit.
10.Arguments were advanced by the Learned Counsel for the plaintiff and written submissions were filed on behalf of the defendant. Learned Counsel for the plaintiff argued that the present suit falls within the classes of the suits mentioned in Order XXXVII Rule (1) sub-rule (2) clauses (a) and (b). The plaintiff has claimed a total sum of Rs. 2,75,100/- (Rupees Two Lakh Seventy Five Thousand and One Hundred Only) on the basis of firstly, the two post dated cheques issued by the defendant in favour of the plaintiff and secondly, the advance receipt form, bearing the signature of the defendant against the payments received by the plaintiff, Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 7 of 15 amounting to an acknowledgment and thus falling within the category of a written contract. Learned Counsel for the plaintiff relied upon two judgments, namely: M.D. Overseas Ltd. v. Uma Shankar Kamal Narain and Ors., AIR 2006 Delhi 361 and Maa Communications Bozell Ltd. v. Sh. K.L. Shroff and Anr., 111 (2004) DLT 530 in support of his contentions. Copy of the said judgments was directed to be supplied to the Counsel of the opposite party.
11.Having perused the documents placed on record and having heard the arguments advanced, the only consideration before this court is whether the defendant is entitled to an unconditional leave to defend in accordance with Order XXXVII Rule 3 (5) of the Code of Civil Procedure. In other words, whether there is a triable issue disclosed on affidavit or otherwise by the defendant. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts as alleged by the defendant are established there would be a good or even plausible defence on those facts. The defendant must state what his defence is, and must, as a rule, bring something more before the Court to show that it has a bona fide defence and is not a mere attempt to gain time by getting leave to defend. 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 the uncertainty as to the amount actually due or where Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 8 of 15 the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses then leave to defend should not be denied. Reference in this regard is made to the decision of the Hon'ble High Court of Delhi, Yuvneet Suri and Anr. v. Round The Clock Stores Ltd., (2007) ILR 12 Delhi 5.
12.The position in law has been explained by the Hon'ble Supreme Court in Milk Hiram (India) (P) Ltd v. Chamanlal Bros, AIR 1965 SC 1698 and Mechelec Engineers & Manufacturers v. Basic Equipment Corpn, 1976 (4) SCC 687. The criteria for grant of leave to defend was again highlighted in Sunil Enterprises v. SBI Commercial & International Bank Ltd, 1998 (5) SCC 354, wherein it was noted as follows:
i. If the defendant satisfies the court that he has a good defence to claim on merits, the defendant is entitled to unconditional leave to defend. ii. If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend. iii. 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 Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 9 of 15 may impose conditions at the time of granting leave to defend- the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.
iv. 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.
v. If the defendant has no defence or if the defence is sham or illusory 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 condition that the amount claimed should be paid into court or otherwise secured.
13.In the present suit, the case of the plaintiff is that the plaintiff had advanced a total sum of Rs. 2,75,100/- (Rupees Two Lakh Seventy Five Thousand and One Hundred Only) to the defendant for purchase of a plot of land measuring 85 sq. yards for a price of Rs. 3,800/- (Rupees Three Thousand and Eight Hundred Only) per sq. yards amounting to a total of Rs. 3,23,000/- (Rupees Three Lakh Twenty Three Thousand Only). The plaintiff was making the payments to the defendant by way of cash and cheque on different dates. A document titled 'advance receipt' has been placed on record by the plaintiff, on which he relies, claiming it to be a written contract between the parties. It is averred by the plaintiff that the Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 10 of 15 payments which were made to the defendant were noted on this advance receipt along with the date when the payment was made. Further, that the advance receipt bears the signature of the defendant and one Mr. Anil Kumar, partner of the defendant. The advance receipt appears to be a printed form, wherein particulars seem to have been filled in as follows and is shown in italics:
"Received with thanks a sum of Rs. 5100/ (Rupees_______) in the following mode:-
Cash : Rs. 5100/-
Draft/Cheque : Rs.______
from Abadesh Prasad Patel________ on account of Advance/Earnest money against the transfer/sale of my/our Plot/House/Land/Shop No. M. Kunj_____ measuring 100 sq. yards/mtrs/ft., situated in ______, which has been acquired by me/us vide alloment Letter/Sale Deed ____Vasika No.______dated _______. The balance amount of Rs. 45,000/- in full and final shall be payable by the proposed purchaser (s) on or before _______ as per term of Agreement to sell dated ______."
14.Further, the plaintiff goes on to state that when subsequently the defendant demanded that the payments be made at the revised rate of Rs. 6,200/- (Rupees Six Thousand and Two Hundred Only) per sq. yards instead of Rs. 3,800/- (Rupees Three Thousand and Eight Hundred Only) Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 11 of 15 per sq. yards, the plaintiff refused to do so and demanded that the payments made by him to the defendant be returned. The defendant agreed to do so and in fulfillment of the above, the defendant issued two post dated cheques in favour of the plaintiff in the sum of Rs. 30,000/- (Rupees Thirty Thousand Only) and Rs. 50,000/- (Rupees Fifty Thousand Only), which were dishonored due to insufficiency of funds.
15.The plaintiff seeks to recover the total amount of Rs. 2,75,100/- (Rupees Two Lakh Seventy Five Thousand and One Hundred Only) advanced by him to the defendant under the provisions of Order XXXVII of Code of Civil Procedure on the basis of firstly, the two post dated cheques issued by the defendant in favour of plaintiff, which were dishonored and secondly, on the basis of the said advance receipt along with the Statement of Accounts of the plaintiff, amounting to an acknowledgment and thus falling under the category to 'recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a written contract'.
16.In the defendant's application for leave to defend, the case of the defendant is that it was him who had advanced a friendly loan to the plaintiff for a sum of Rs. 3,00,000/- (Rupees Three Lakh Only). On having discovered that the plaintiff had taken the loan from the defendant Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 12 of 15 on a false pretext, the defendant demanded his money back. The alleged payments that were made by the plaintiff to the defendant were in fact the loan amount being repaid by the plaintiff to the defendant. Out of the total loan amount of Rs. 3,00,000/- (Rupees Three Lakh Only) the plaintiff had returned only Rs. 2,20,000/- (Rupees Two Lakh and Twenty Thousand Only).
17.Having considered the defence, it does not appear to be plausible one. Now, even if it is to be believed that the defendant had advanced a loan of Rs. 3,00,000 (Rupees Three Lakh Only) to the plaintiff in the year 2010, there are numerous loopholes to deflate the defence in its entirety. The defendant admits that he had received a sum of Rs. 2,20,000 (Rupees Two Lakh Twenty Thousand Only) from the plaintiff. However, it is averred that the same was towards the discharge of the plaintiff's liability towards the defendant. Now, as per the defendant's own case, it was the plaintiff who owed a sum of Rs. 80,000 (Rupees Eighty Thousand Only) to the defendant. However, it is not in dispute that two cheques dated 01.06.2012 and 28.08.2012 were issued by the defendant in favour of the plaintiff in the sum of Rs. 30,000/- (Rupees Thirty Thousand Only) and Rs. 50,000/- (Rupees Fifty Thousand Only) respectively, which were subsequently dishonored due to insufficiency of funds. There is no explanation or even any averment as to why the defendant had issued the Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 13 of 15 said cheques. Assuming that the plaintiff owed a sum of Rs. 80,000 (Rupees Eighty Thousand Only) to the defendant, then it is incomprehensible as to why the defendant would issue two cheques in the total sum of Rs. 80,000 (Rupees Eighty Thousand Only) in favour of the plaintiff. The defendant is absolutely silent on this. The defendant has failed to put forward any alleged fact, which if proved, would lead to a conclusion that the defence raised was a substantial or at least a plausible one. The defendant is required to bring something more to show that the defence is a bona fide one, especially in cases where the summary suit is based a cheque/bill of exchange and the presumption arising under Section 139 of the Negotiable Instruments Act, 1881 is attracted. The defence raised in frivolous and appears to be raised only as a means to delay the payment to the plaintiff.
18.Thus, in view of the above findings, the defendant's application for leave to defend is dismissed and accordingly, the plaintiff is entitled to a judgment as per Order XXXVII Rule 3 (6) (a) of Code of Civil Procedure.
19.It is not in dispute that the cheques in question were issued by the defendant in favour of the plaintiff which were dishonored owing to insufficiency of funds. As per the provisions of Order XXXVII Rule 1 (2) Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 14 of 15 of Code of Civil Procedure, there are two classes of suits falling under said rule, one is based upon bills of exchange, hundies and promissory notes and the other, where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest. The latter class of suits is restricted to suits where the debt or liquidated demand arises (1) on a written contract or (2) on an enactment or (3) on a guarantee. A cheque is a bill of exchange and clearly the suit of the plaintiff is covered in the first class/category of the suits. The plaintiff is entitled to payment of the amount stated in the said cheques.
20.In view thereof, a decree in the sum of Rs. 80,000/- (Rupees Eighty Thousand Only) along with pendente lite and future interest at the rate of 6% per annum from the date of institution of the suit till the date of realization and costs of the suit is passed in favour of the plaintiff and against the defendant.
21.Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Pronounced in Open Court on (SALONI SINGH)
17.01.2014 Civil Judge-03/PHC/N.DELHI
17.01.2014
Case no. 24/13 Avdesh Prasad Patel Vs. Sant Ram Khatana 15 of 15