Delhi District Court
Cs No. 75/16 R.K. Choudhari vs . Parveen Kumar Page No.1/18 on 5 April, 2018
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 75/16
New No. 613828/16
R.K. Choudhari
F-278, SF, New Rajinder Nagar,
New Delhi.
.....Plaintif
vs.
Parveen Kumar (Arora)
F-5, Double Storey Qrs.,
West Patel Nagar,
New Delhi-110008.
Also at:
Parveen Kumar (Arora)
Cottage No. 31, Top Floor,
West Patel Nagar,
New Delhi-110008.
....Defendant
Date of institution : 09.12.2016
Date of reserving Judgment : 14.03.2018
Date of of pronouncement : 05.04.2018
ORDER
05.04.2018
1. The defendant has filed an application under Order XXXVII Rule 3 of Code of Civil Procedure for grant of leave to defend. The brief facts necessary for the disposal of the application are as under:
2. The plaintif has filed a suit under Order XXXVII of Code of Civil Procedure for recovery of Rs.5,00,000/- with interest and cost against the defendant. As per plaintif, the defendant CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.1/18 (New No. 613828/16) borrowed a sum of Rs.2,00,000/- from the plaintif vide agreement dated 03.10.2012. The defendant also tendered a cheque bearing no. 465518 to the plaintif towards the repayment of the principal amount. It was agreed that the said cheque is towards the payment of the principal amount so borrowed and the interest shall be payable as per the time period lapsed. The parties further agreed that the other terms and conditions of the said loan shall be governed by the earlier Agreement dated 10.07.2012 entered into between the parties. Thereafter on 10.11.2012 by way an addition in the same Agreement i.e. in the document for the Agreement dated 03.10.2012, the defendant borrowed a further sum of Rs.3,00,000/- from the plaintif. The defendant tendered a cheque of Rs.3,00,000/- to the plaintif with the stipulation that the plaintif can deposit the same towards the recovery of the principal amount.
3. It is stated that however, defendant failed to repay the borrowed amount and hence, the plaintif was constrained to present the said cheque for their realization. However, when the plaintif presented the cheque no. 465518 for realization in his Bank Account No. 0629000100103325 maintained with Punjab National Bank, Branch New Rajinder Nagar, New Delhi, the said cheque was returned unpaid for the reason of insufficient funds. Whereas the other cheque no. 465523 amounting to Rs.3 lacs was presented by the plaintif in the same bank account, the bank refused to even accept the said cheque for the reason that same was torn in a manner which renders the same invalid. It was further informed by the Bank to the plaintif that the said cheque even otherwise cannot be honoured as the account of the defendant has no sufficient balance. The plaintif has been requesting the defendant to discharge his liability and repay the CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.2/18 (New No. 613828/16) amounts borrowed with interest since the time of return of the said cheques but in vain.
4. It is further stated that since the plaintif and the defendant were known to each other, the plaintif had been refraining himself from initiating any stringent criminal proceedings against the defendant. Further the defendant and his associate, namely, Mr. Suraj Prakash Nandwani have also entered into a purported Collaboration Agreement with the wife of the plaintif. In default of repayment of the loan amount borrowed, the right of the defendant and his associate was to cease under the said purported Collaboration Agreement. On account of certain disputes having arisen between the parties, the Arbitration proceedings are pending. In the said proceedings, the Ld.Arbitrator vide his order dated 09.10.2014 has held that the issue with respect to the loan amounts borrowed by the defendant from the plaintif cannot be adjudicated in the said arbitral proceedings. Hence, the plaintif has instituted the present suit.
5. The plaintif seeks a decree for the sum of Rs.5,00,000/- against the defendant along with pre-institution, pendent lite and future interest at the contractual rate of interest or such other rate of interest as this Court deems just and proper.
6. On receiving of summons for appearance, the defendant filed his appearance and thereafter, the plaintif has applied for summons for judgment and on receiving of summons for judgment, the defendant filed the present application under Order XXXVII Rule 3 (5) for grant of leave to defend along with accompanying affidavit as per Order XXXVII Rule 3 (4) of CPC.
CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.3/18(New No. 613828/16)
7. The defendant has taken the defence that the present suit lacks the territorial jurisdiction of this Court as the address of the defendant as mentioned in the plaint comes in the territorial jurisdiction of Central District and not under West District. The suit is barred by time limitation as the suit has been filed on the basis of alleged Loan Agreement dated 03.10.2012 while the suit has been filed on or after 18.04.2017. In order to mislead the Court, the plaintif has fabricated, manipulated and forged the alleged cheques of dated 10.01.2014 and 30.12.2014. The present suit as filed under Order XXXVII CPC is not maintainable and the suit is not covered under the ambit of Order XXXVII CPC. The whole of the story as made out by the plaintif is based upon falsehood, concoction, manipulation and fabrication and devoid of truth and merits.
8. It is stated that due to dispute with the plaintif's wife Smt. Madhu Choudhary, the defendant and said Sh. Suraj Parkash had already issued legal notice dated 10.12.2013 and thereafter filed a petition under Section 11 of the Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Delhi vide Arbitration Petition No. 49/2014 titled 'Parveen Kumar & Anr. vs. Smt. Madhu Choudhary'. In the said Arbitration petition, the Hon'ble High Court vide order dated 25.04.2014 appointed the Ld. Sole Arbitrator Sh.Pramod Aggarwala, Advocate. Therefore, since then the arbitration proceedings are pending before the Ld. Sole Arbitrator. It is after though that when the above litigations are ensuing between the plaintif's wife and defendant & his associate/partner since December, 2013, then how could the alleged cheques dated 12.07.2014 and 30.12.2014 be issued by the defendant to the plaintif.
CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.4/18(New No. 613828/16)
9. It is stated that the actual true facts are that the plaintif's wife along with his husband had approached the defendant and his partner to reconstruct old and dilapidated property bearing No. 29/76, West Patel Nagar, New Delhi as the defendant his partner are doing the business of builder and developer of the properties in the said locality. The defendant and his partners Sh. Suraj Prakash Nandwani accepted the said request of the plaintif's wife and accordingly, after settling the terms and conditions for the rebuilding of the aforesaid property, the defendant with his partners and plaintif's wife entered into and executed a Collaboration Agreement dated 09.11.2011. they agreed that the plaintif's wife shall be owner of built up entire basement floor, entire ground floor and entire first floor without terrace roof rights, measuring 100 sq. yds. out of property bearing No. 29/76, situated at West Patel Nagar, New Delhi of the constructed building and the defendant and his partners shall be owner of the built up entire second floor and entire third floor with terrace roof rights measuring 100 sq. yds. out of property bearing No. 29/76, situated at West Patel Nagar, New Delhi with ownership rights and all rights for selling/transfer the said floors and they will be fully entitled to sell their share. They also agreed that in case any dispute or diferences, the same will be referred to the Sole Arbitrator to be appointed by and whose decision shall be final and binding upon both the parties.
10. It is stated that as per the said Collaboration Agreement, it was agreed that the total bargaining has been settled for a sum of Rs.46,00,000/-, out of which Rs.10,00,000/- which has been received previously by the plaintif's wife from the defendant as an earnest money i.e. Rs.5 lacs in cash and Rs.5 lacs through cheque No. 140725 dated 09.11.2011 drawn on HDFC CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.5/18 (New No. 613828/16) Bank Ltd., East Patel Nagar, New Delhi and a sum of Rs.16 lacs which will be received by the plaintif's wife at the time of conversion of the property into freehold rights and the balance of Rs.20 lacs will be paid at the time of completion of the structure of the aforesaid property and or receive the repayment against sale whichever is earlier.
11. It is further stated that due to the change of policy of the Government of Delhi, the basement was not allowed and therefore, the defendant and plaintif's wife further executed a Supplementary Collaboration Agreement dated 27.06.2012, whereby it was settled and agreed that the defendant shall construct entire stilt area (below ground floor), entire ground floor, entire first floor, entire second floor and entire third floor. It was further agreed between them that after completing the construction of the said property as per the Collaboration Agreement/ Supplementary Collaboration Agreement, the plaintif's wife shall retain the built up entire stilt area, entire ground floor and entire first floor, without terrace roof rights out of the aforesaid property and the defendant shall retain the built up entire second floor and entire third floor, with terrace roof rights out of the aforesaid property and the defendant shall not have any right, title and interest in the stilt area out of the said property. It was agreed that the remaining terms and conditions of the Collaboration Agreement dated 09.11.2011 shall remain same.
12. It is further stated that as per the said agreed terms and conditions of the Collaboration Agreement dated 09.11.2011, the defendant and his partner paid the following amounts to the plaintif's wife which she had duly received i.e. Rs.1 lac in cash on CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.6/18 (New No. 613828/16) 21.10.2011; Rs.10 lacs i.e. Rs.5 lacs in cash and Rs.5 lacs through cheque No. 140725 dated 09.11.2011 drawn on HDFC Bank Ltd., East Patel Nagar, New Delhi; Rs.5 lacs in cash on 24.12.2011; Rs.10 lacs in cash on 27.08.2012; Rs.1 lac in cash on 20.09.2012; Rs.2 lacs being penalty for delay from lease hold to freehold of the property under Collaboration Agreement dated 20.09.2012. In this way the defendant and his partner have paid the total sum of Rs.29 lacs to the plaintif's wife.
13. It is further stated that as per the Collaboration Agreement dated 09.11.2011, the plaintif's wife had delivered the said property to the defendant and accordingly, the defendant carried out the construction over the said property after demolition of the old structure. The defendant and his partners made numerous requests to the plaintif's wife for executing the GPA but she has neglected to the said requests and has gained time on one pretext or the other. Therefore, the defendant has served the plaintif's wife with a legal notice dated 10.12.2013 and called upon the plaintif's wife to execute either a GPA in favour of the defendant and his partners or directly execute sale deed of the entire second floor and entire third floor with terrace roof rights in favour of the purchasers. Since a dispute has arisen between the defendant and the plaintif's wife out of the said Collaboration Agreement dated 09.11.2011 and Supplementary Collaboration Agreement dated 27.06.2012, therefore, the defendant and his partners got appointed the Ld. Sole Arbitrator from the Hon'ble High Court.
14. It is stated that no such deal or transaction taken place between the plaintif and defendant and there was no occasion for the defendant to make any borrowing from the CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.7/18 (New No. 613828/16) plaintif or execute any such alleged loan agreement or issue the cheques in question against any such alleged loan in favour of the plaintif. In reply filed by plaintif's wife to the statement of claim of the defendant before the Ld. Sole Arbitrator, it has been alleged that the plaintif's wife/ her husband i.e. plaintif herein given alleged loan of Rs.15 lacs to the defendant and his partner and further that in case of default in repayment of the said loan, the said Collaboration Agreements shall stand forfeited/ terminated. In the said reply, the plaintif's wife has not mentioned of issuance of any such cheques against any alleged loan amount. However, in contrary to the said version of the plaintif's wife in above arbitration case, the plaintif has alleged that he allegedly gave loan of Rs.5 lacs to the defendant and also about initially five cheques and then issuing further five cheques in exchange by the defendant to the plaintif.
15. It is stated that in the said reply filed in the arbitration proceedings, the plaintif's wife did not mention of the alleged loan agreement, while in the matter in hand, the plaintif has claimed of alleged forged and fabricated document i.e. loan agreement. In the present case, the plaintif alleged that he advanced the alleged loan of Rs.5 lacs but in the reply before the Ld. Sole Arbitrator, the plaintif's wife alleged that she and her husband advanced the alleged loan. In the said reply, there is no mentioning of issuance of any such alleged cheques in favour of the plaintif by the defendant. In fact, the plaintif has manipulated and cooked up said false story in conspiracy with his wife in order to frustrate the said proceedings and claims of the defendant before the Ld. Sole Arbitrator.
CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.8/18(New No. 613828/16)
16. It is stated that apart from the present false suit, the plaintif has filed two similar false suits for recovery of Rs.5 lacs each i.e. for total amount of Rs.15 lacs in three suits. It is all cock and bull story of the plaintif that he or his wife advanced any such alleged loan of Rs.15 lacs to the defendant and his partner. It is self imaginary and after thought that the defendant and his partners who have already spent/incurred several lacs of rupees on the construction of the said property and also paid Rs.29 lacs to the plaintif's wife, would take any alleged loan of Rs.15 lacs from the plaintif or his wife and that too at the cost that in case the alleged loan amount are not paid with interest then the rights of the defendant and his partners in the said Agreements shall stand forfeited/terminated.
17. It is stated that the defendant and his partner did not take any loan whatsoever from the plaintif or his wife what to talk of alleged loan of Rs.5,00,000/- on 11.07.2012, Rs.5,00,000/- on 04.10.2012 and Rs.2,00,000/- on 10.11.2012 (as claimed in two other suits) and the alleged documents as relied upon by the plaintif are only forged, fabricated and tampered piece of papers manufactured by the plaintif and his wife fraudulently. Even otherwise, the alleged documents have no legal sanctity and enforceability in the eyes of law. Firstly, the alleged writing for loan of Rs.5 lacs is apparently tampered with as first 8 lines are in computer typing while the remaining are from manual typewriter and further there is manual typing on the rear of the alleged stamp paper, which does not bear any signature in the name of he defendant, while at front page there are over-writing, cuttings, additions, alterations etc. As per settled proposition of law no typing can be made on the rear of the stamp paper. It is self imaginary and after thought that when the defendant and his CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.9/18 (New No. 613828/16) partner have paid Rs.29 lacs to the plaintif's wife and spent huge amount of lacs of rupees on the construction of stilt, ground floor, first floor, second floor and third floor of the property, would enter into any such agreement and give up their legal right in respect of entire second floor and entire third floor with roof/terrace rights against the non payment of alleged loan of Rs.5,00,000/-.
18. It is stated that the cheques in question as mentioned by the plaintif and his wife were issued by the defendant towards the remaining amount out of the agreed amount to be paid by the defendant and his partner to the plaintif's wife as being post dated, but the plaintif and his wife cooked up false story of alleged loans and manufactured the forged and fabricated documents/writing to use the said post dated cheques under the Collaboration Agreement.
19. It is stated that in case there was any alleged cheques issued to him and returned dishonoured in the year 2014 itself, then why he did not initiate any legal proceedings as apparently he never issued any legal notice what to talk of filing complaint under Section 138 of NI Act or any other legal proceedings and he has chosen to file the present false and frivolous time barred suit after more than 4 ½ years only to frustrate the proceedings before the Ld. Sole Arbitrator. The said cheques in question were blank and handed over to the plaintif's wife, but the plaintif fraudulently and dishonestly, in connivance with his wife, filled up his name, date etc. on the said blank signed cheques and instituted the present false and frivolous suit. It is stated that there are other triable issues involved in the present suit, which cannot be decided/adjudicated in summary trial and as such the defendant seeks leave to defend and contest the suit.
CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.10/18(New No. 613828/16)
20. The plaintif filed reply to leave to defend application, in which he denied the averments made in the leave to defend application and affidavit and also reiterated the averments made in the plaint. It is stated that if a failure is found on the part of the defendant to file the application for leave to defend, then the said application is liable to be dismissed on this ground alone. Both the Central and West District lie in the same court premises as such the Court has jurisdiction to entertain the present suit and the objection in this regard is only a ploy to delay the recovery under present proceedings. The present suit is well within the period of limitation.
21. It is stated that the defendant himself took a contrary plea that the cheques in issue in the present case have no relevancy to the transaction constituting the subject matter of the said arbitral proceedings. Even on such pleas Ld. Arbitral Tribunal passed an order dated 09.10.2014. It stated that it is clear from the return memos that not only the cheques were torn wrongly but also the defendant did not have sufficient balance in his account for the purpose of the said cheques. The amounts were borrowed by the defendant under the loan agreements duly placed on record by the plaintif. Any allegation against the wife of the plaintif is superfluous and is only made to somehow attempt to mislead the Court in so far as the contentions raised by the defendant qua the transaction between the wife of the plaintif and the defendant and his partners, the same are not relevant for the purpose of the present suit.
22. The plaintif has denied that there is any tampering with the contents of the said loan agreement. Even if it is CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.11/18 (New No. 613828/16) assumed that no writing can be made at the back of a stamp paper, the writing clearly present before the signature of the defendant is sufficient to show the transaction. Further, the cheques in question, independently and conclusively substantiate the case of the plaintif in terms of the provisions of Order XXXVII CPC. It is stated that not taking recourse to the proceedings under Section 138 of the NI Act does not preclude the plaintif from seeking recovery of the amount under the present suit.
23. It is stated that the leave to defend filed by the defendant does not raise any triable issue and as such the same is liable to be rejected. The application is full of vague, irrelevant and contradictory contentions. The suit of the plaintif is entitled to be decreed under the provisions of Order XXXVII CPC.
24. Neither the plaintif nor defendant got the application for leave to defend argued despite ample opportunity given for the same. I have perused the material on record.
25. In order to to appreciate the contentions of both the parties, let us peruse the principle of law for grant of leave to defend as laid down by Hon'ble Apex Court in the recent judgment IDBI Trusteeship Services Limited vs. Hubtown Limited, (2017) I SCC 568. It was held as under:
"14. We may hasten to add that Mechelec case has since been followed in a series of judgments of this court - MCD v. Suresh Chandra Jaipuria at para 11; Sunil Enterprises v. SBI Commercial & International Bank Ltd. At para 4; State Bank of Saurashtra v. Ashit Shipping Services (P) Ltd. At para 10; Uma Shankar Kamal Narain v. M.D. Overseas Ltd. At paras 8 and 9; SIFY Ltd. v. First Flight Couriers Ltd. At para 10; Wada Arun Asbestos (P) Ltd. v. Gujarat Water Supply & Sewerage Board at para 19; R. Saravana Prabhu v. Videocon Leasing & Industrial Finance CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.12/18 (New No. 613828/16) Ltd. At para 4; and State Bank of Hyderabad v. Rabo Bank at para 16.
15. However, there are two judgments of this Court which directly deal with the amendment made to Order 37 and the effect thereof on the ration contained in Mechelec case:
15.1. In Defiance Knitting Industries (P) Ltd. v. Jay Arts, this Court, after setting out the amended Order 37 and after referring to Mechelec case, laid down the following principles: (Jay Arts case, SCC po. 31, para13) "While giving leave to defend the suit the court shall observe the following principles:
(a) If the court is of the opinion that the case raises a triable issue then leave to defend should ordinarily be granted unconditionally. See Milkhiram (India) (P) Ltd. v. Chaman Bros. The question whether the defence raises a triable issue or not has to be ascertained by the court from the pleadings before it and the affidavits of parties.
(b) If the court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious it may refuse leave to defend altogether. Kiranmoyee Dassi v. J. Chatterjee (noted and approved in Mechelec case).
(c) In cases where the court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the court may impose conditions in granting leave to defend."
15.2. In Southern Sales & Services v. Sauermilch Design & Handels SmbH, this Court was squarely asked to render its decision on whether the judgment in Mechelec case was to a large extent rendered ineffective in view of the amended Order
37. this Court found: (sauermilch case, SCC p. 462, para 15) "15.Having considered the submissions made on behalf of the respective parties and the decisions cited, there appears to be force in Mr Sharma's CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.13/18 (New No. 613828/16) submissions regarding the object intended to be achieved by the introduction of sub-rules (4), (5) and (6) in rule 3, Order 37 of the code. Whereas in the unamended provisions of Rule 3, there was no compulsion for making any deposit as a condition precedent to grant of leave to defend a suit by virtue of the second proviso to sub-rule (5), the said provision was altered to the extent that the depot of any admitted amount is now a condition precedent for grant of leave to defend a suit filed under Order 37 of the code. A distinction has been made in respect of any part of the claim, which ia admitted. The second proviso to sub-rule (5) of Rule 3 makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in court".
16. It is thus clear that Order 37 has suffered a change in 1976, and that change has made a difference in the law laid down. First and foremost, it is important to remember that Milkhiram case is a direct authority on the amended Order 37 provision, as the amended provision in Order 37 Rule 3 is the same as the Bombay amendment which this Court was considering in the aforesaid judgment. We must hasten to add that the two provisos to sub-rule (3) were not, however, there in the Bombay amendment. These are new, and the effect to be given to them is something that we will have to decide. The position in law now is that the trial Judge is vested with a discretion which has to result injustice being done on the facts of each case. But Justice, like Equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are sworn enemies. The discretion that a Judge exercises under Order 37 to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Joseph's multi- coloured coat - a large number of baffling alternatives present themselves. The life of the law not being logic but the experience of the trial Judge, is what comes to the rescue in these cases; but at the same time informed by guidelines or principles that we propose to lay down to obviate exercise of judicial discretion in an arbitrary manner. At one end of the spectrum is unconditional leave to defend, granted in all cases which present a substantial defence. At the other end of the spectrum are frivolous or vexatious defences, leading to refusal of leave to defend. In between these two extremes are CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.14/18 (New No. 613828/16) various kinds of defences raised which yield conditional leave to defend in most cases. It is these defences that have to be guided by board principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case.
17. Accordingly, the principles stated in para 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case as follows:
17.1 If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3 Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4 If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5 If the defendant has no substantial defence and/or raise no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.15/18
(New No. 613828/16) 17.6 If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
26. Now coming to the present case, the defendant raised first legal objection with regard to territorial jurisdiction. The agreement of borrowing money of Rs.2 lacs and further Rs.3 lacs executed between the parties on 03.10.2012 witnessed by two witnesses. The original cheque bearing no.465518 dated 10.01.2014 in sum of Rs.2 lacs and cheque bearing no.465523 dated 30.12.2014 in sum of Rs.3 lacs presented by the plaintif with his bank situated at Rajender Nagar and same were dishonoured because of insufficient funds. The defendant is resident of West Patel Nagar, which comes under Police Station West Patel Nagar, his banker Punjab National Bank is also situated in West Patel Nagar. Therefore, West District has the jurisdiction where defendant resides and got issued cheques to the plaintif to discharge his liability of borrowed loan of Rs.5 lacs. I find no merit in the contention with regard to territorial jurisdiction. The West District has the territorial jurisdiction to try and decide the present suit.
27. The next contention taken is with regard to limitation.
As claimed by the defendant, the suit is barred by limitation. Cheques bearing no.465518 dated 10.01.2014 in sum of Rs.2 lacs and cheque bearing no.465523 dated 30.12.2014 in sum of Rs.3 lacs were presented for encashment and as per endorsement of the bank, there was no balance and returned memo was issued dated 04.03.2014. The present suit is filed on 09.12.2016. The suit was filed within the prescribed period of three years and CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.16/18 (New No. 613828/16) therefore, I do not find any merit in this contention as well. The presnt is within limitation.
28. The defence taken is that original cheque bearing no.465518 dated 10.01.2014 in sum of Rs.2 lacs and cheque bearing no.465523 dated 30.12.2014 in sum of Rs.3 lacs, are forged, fabricated and manipulated. However, defendant has not denied the signatures and the amount filled in the cheques. There is no denial that on the date of presentation of all the cheques in his account, there were no sufficient funds. The plaintif has filed original cheques, therefore, it fulfill the requirements of Order 37 CPC. It is admitted by parties that there was a Collaboration Agreement with regard to property no. 29/76, West Patel Nagar, New Delhi and arbitration proceedings initiated between the parties. The present agreement and repayment of loan is independent to arbitration proceedings pending between the parties. I find no force in this contention of the defendant. The arbitration proceedings do not cover the dispute with regard to payment of borrowed money as per agreement between the parties in the present suit. The arbitration proceedings have no bearing on dishonoured cheques in the present suit.
29. In my considered opinion, there was loan agreement between the parties. In consequence to this defendant had issued cheque bearing no.465518 dated 10.01.2014 in sum of Rs.2 lacs and cheque bearing no.465523 dated 30.12.2014 in sum of Rs.3 lacs. The said cheques were presented for encashment and returned unpaid due to insufficient funds. The defence put up by the defendant is a moonshine defence with regard to forged, fabricated and manipulated cheques by the plaintif. However, the signatures and amount and dishonouring of the cheuqes are CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.17/18 (New No. 613828/16) not specifically challenged before the court. The averments in the affidavit of the defendant does not disclose any substantive, positive, reasonably fair defence. In my considered opinion no triable issue raised by the defendant which is plausible and probable for conducting trial. There is no substantial defence and genuine triable issue raised by the defendant. In my considered opinion, in the present facts and circumstances, I do not find any plausible defence to grant leave to defend the suit to the defendant. Hence, the application is dismissed.
30. Accordingly, suit of the plaintif is decreed. A decree in sum of Rs.5,00,000/- (Rupees five lacs only) is passed along with pendente lite and future interest at the rate of 9% per annum from the date of institution of the suit till realization along with cost of the suit. Decree sheet be prepared accordingly.
31. File be consigned to Record Room.
Announced in the open court Digitally signed th by SANJAY today the 5 April, 2018. SANJAY KUMAR Date: KUMAR 2018.04.04 11:15:57 +0530 (Sanjay Kumar) ADJ-02,West/Delhi 05.04.2018 CS No. 75/16 R.K. Choudhari vs. Parveen Kumar Page No.18/18 (New No. 613828/16)