Delhi District Court
Tarun Nagpal vs Suresh Kumar Goel on 9 March, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
RCA No. 162/2013
Unique Case ID No. 02401C0526232012
Tarun Nagpal
S/o late Sh. Sain Dass Nagpal
R/o D17, Rajan Babu Road,
Adarsh Nagar, Delhi33
.............. Appellant
VERSUS
Suresh Kumar Goel
S/o Sh. S. K. Goel,
R/o D48, Rana Pratap Road,
Adarsh Nagar Extension, Delhi33.
............ Respondent
Date of Institution : 07.11.2012
Arguments heard on : 09.03.2015
Date of Decision : 09.03.2015
JUDGMENT:
This appeal has been filed against the Judgment of Ld. Trial Court dated 18.9.2012 thereby disposing off the application of the appellant for Leave to Defend and decreeing the suit of Recovery under Order 37 CPC.
I have gone through the grounds raised in the appeal which are not being repeated for the sake of brevity. I have also gone through Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 1 of 5 the Trial Court record, the impugned Judgment and also considered the submissions made before me. I have also gone through the various authorities which are as under:
1. Surjit Singh & ors. vs. Gurwant kaur & Ors, 2014 Legal Eagle (SC) 766.
2. Anil Tyagi vs. S. D. Infosys & Ors. 2014 Legal Eagle (Del) 1096
3. Govt. of Karnataka & Anr. Vs. K. C. Subramanya & Ors. 2013 Legal Eagle (SC) 894.
4. Lekhraj Bansal vs. State of Rajasthan & Anr. 2014 Legal Eagle (SC) 129 During the course of proceedings, an application under Order 41 Rule 27 CPC was also filed on behalf of the appellant seeking permission to place on record the certified copies of the complaint filed by the respondent Suresh Kumar Goel against the appellant Tarun Nagpal under Section 138 of Negotiable Instruments Act dated 21.12.2005, proceedings dated 23.08.2011 and his cross examination dated 25.05.2012. It is argued that the said cross examination recorded before the Ld. MM would confirm the inherent discrepancies in the case of the plaintiff as put forward by him before the Ld. Trial Court and reveals that the respondent had admitted his handwriting in the document Ex.PW1/DX1 and Ex.PW1/DX2 in which the plaintiff (appellant before Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 2 of 5 this court) claims that he had sent certain communication to the respondent thereby challenging the claims made by him in the plaint.
I have considered the authorities relied upon by the counsel for the respondent and at the very outset I may observe that in all the authorities / judgments so relied upon by the counsel for respondent as aforesaid, the evidence which the appellant had sought to place on record was already available with the appellant at an early stage despite which was not tendered into evidence. In the case before me, there was no such opportunity to the appellant to have presented these documents i.e. certified copies of the cross examination of the witness to the Ld. Trial Court since the cross examination of the respondent before the Ld. MM had taken place much later, whereas the application for leave to defend had been filed by the appellant earlier to the same.
This being the background, the short ground on which I am inclined to intervene is the fact that Firstly according to the appellant the cheques in question were given as a security for supply of material but since the transaction had not taken place the cheques could not be put in discharge of liability which is a triable issue and Secondly that certain communications in question had been sent to the respondent in the envelope dated 7.3.2015 which apparently the respondent has admitted in his cross examination before the Ld. MM conducted later after the leave to defend was filed by the defendant (i.e. appellant before this court) but had denied the same before the Ld. Trial Court in the Suit. Whether the Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 3 of 5 cheques in question were given towards the security towards the supply of the material or whether the transaction in question had actually taken place or not, is a triable issue and cannot be decided without giving an opportunity to the parties to lead their respective evidence. Further, the fact that the respondent had admitted his handwriting over the envelope but had denied the contents of the same explaining that at the relevant time he was holding some post in the Residents Welfare Association (RWA) and was sending communications to various members of the Association is an aspect which needs to be looked into and whether these communications contain the communications of the appellant or some other communications as claimed by respondent is again a fact which can only be decided after affording an opportunity to lead evidence by the parties which becomes important in view of the fact that I am informed that members of the RWA were summoned in the criminal court during which it came to light that the respondent was not holding any post in the Association. Hence I am satisfied that a triable issue has been raised by the appellant particularly in view of the subsequent evidence which has come on record in the court of the Ld. MM where a criminal case has been filed on the basis of the same cheques and it was necessary to offer an opportunity to the appellant to file his detailed written statement and defend his case before the Ld. Trial Court.
In this background, I hereby set aside the order of Ld. Trial Court dismissing the application of the appellant for leave to defend and Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 4 of 5 decreeing the suit of the respondent. Application under Order 41 Rule 27 CPC and the Appeal are accordingly allowed.
Parties to appear before the Ld. Trial Court / Successor Court at 2:00 PM on 21.03.2015 after which two weeks time is given to the appellant to file his written statement before the Ld. Trial Court.
The Trial Court record be sent back along with copy of this order. Appeal file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 09.03.2015 ADJII(CENTRAL)/ DELHI
Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 5 of 5
Tarun Nagpal Vs. Suresh Kumar Goel
RCA No. 162/2013
9.3.2015
Present: Sh. Sumesh Gandhi, Advocate for the appellant.
Sh. Anuj Malhotra, Advocate for respondent.
Ld. Counsel for the respondent submits that he does not wish to file any reply to the application under Order 41 Rule 27 CPC. I have heard the arguments on the appeal as well on the application and considered the various authorities relied upon by the counsels. I have also gone through the written memorandum of arguments filed on behalf of the appellant.
Be awaited for orders at 4:00 PM (Dr. Kamini Lau) ADJ02, Central/9.3.2015 4:00 PM Present: Sh. Sumesh Gandhi, Advocate for the appellant.
Sh. Anuj Malhotra, Advocate for respondent.
Vide my separate detailed judgment, Application under Order 41 Rule 27 CPC and the Appeal are accordingly allowed. Parties to appear before the Ld. Trial Court / Successor Court at 2:00 PM on 21.03.2015 after which two weeks time is given to the appellant to file his written statement before the Ld. Trial Court. The Trial Court record be sent back along with copy of this order. Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJ02, Central/9.3.2015 Tarun Nagpal Vs. Suresh Kr. Goel (RCA 162/13) Page No. 6 of 5