Delhi District Court
Prem Chand vs Vidhata Rawat on 27 November, 2014
In the Court of Pawan Kumar Matto
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
Suit No. 42/2013
In the matter of :
Prem Chand .....Plaintiff
Versus
Vidhata Rawat .....Defendant
O R D E R
27.11.2014
1. This order of mine will dispose of an application, filed by the defendant, for grant of unconditional leave to defend.
2. Brief facts of the case are that the plaintiff has filed the present suit u/o 37 of CPC for recovery of Rs.10,26,000/ alongwith interest @ 24% p.a. w.e.f. 01.08.2012 till the realization of the amount, against the defendant.
3. The summons of the appearance were issued and on the completion of service, the defendant had filed her appearance and on the service of summons for judgment, the defendant has filed the application under consideration U/o 37 rule 3(5) of CPC, on the averments that the suit of the plaintiff is based on the false, frivolous and concocted facts and is not maintainable, as there is no loan agreement, written contract, guarantee, promissory note, documents, Suit No.42/2013 Page No.1 of 19 receipt, invoice or bill for any consideration or to discharge any liability between the parties and further stated that no cause of action has arisen, to the plaintiff to file the present suit, against the defendant, as the defendant had never approached to the plaintiff for grant of loan of Rs. 10,26,000/, for her business needs and further stated that the plaintiff has not mentioned any date, on which the said loan was given by him to the defendant. It is further averred that the defendant had never issued alleged cheques dated 4.7.2012, 19.7.2012 and 1.8.2012 of Rs. 3,50,000/, Rs. 3,50,000/ and Rs.3,26,000/ respectively in favour of the plaintiff, hence, the question of their presentation and dishonour does not arise and further averred that the defendant had not issued any cheque bearing no. 000040 and 650297 of Rs. 1,50,000/ and Rs. 87,000/ against alleged part payment of loan on dated 17.1.2012 and 20.4.2012.
4. It is further averred that the defendant had never executed alleged acknowledgment on 29.6.2012, regarding giving of advance cheques and further averred that the same are manufactured and fabricated documents and have been prepared by the plaintiff to harass, humiliate and blackmail the defendant, who is a lady and a victim of circumstances and further averred that the defendant had not taken any loan Suit No.42/2013 Page No.2 of 19 and she has not issued the cheques in question to discharge any liability to the plaintiff, hence question of payment of any interest does not arise.
5. It is further averred that the defendant does not know to the plaintiff and she only knows to the wife of the plaintiff namely Smt Usha, who was a customer of the defendant since year 2008 and in the year 2009, the wife of the plaintiff also joined the beauty parlour of the defendant, as a trainee and she remained a trainee for one and half year and due to cordial relations, Smt Usha i.e. the wife of the plaintiff used to borrow the money from the defendant from time to time on the ground of financial difficulties and in the month of NovemberDecember2011, the wife of the plaintiff namely Smt Usha requested to the defendant to arrange loan for repairing of her house and also for the marriage of her daughter on the pretext that she and her husband are looking for a proposal for their daughter's marriage and she had requested for loan of Rs. 10,26,000/ and considering the problems of the plaintiff, the defendant had agreed to help the plaintiff, but, the defendant had asked to the plaintiff to wait for some time, as the defendant, being the only daughter was about to receive good amount from her mother, who was going to sell her house, but the plaintiff had told to the Suit No.42/2013 Page No.3 of 19 defendant that if she will not help the plaintiff, the plaintiff has to mortgage or sell the house and keeping in view the past relations and the fact that the defendant has no daughter of her own, the defendant had agreed to give loan to the plaintiff and she handed over three undated cheques and the defendant has instructed to the wife of the plaintiff that these cheques are only being given in advance to secure future help for marriage of her daughter and to not present the same for encashment without prior permission of defendant, as the defendant was not sure of exact time of receiving amount from her mother, but the defendant was shocked to know on receiving a notice that the plaintiff and his wife namely Smt Usha had misused the advance undated cheques and presented the same after alteration for encashment without permission and knowledge of the defendant and the defendant immediately contacted Smt Usha , who gave vague reply and further averred that the plaintiff and his wife had committed breach of trust and had misused the cheques by playing fraud upon the defendant and filed a false case to harass and blackmail the defendant and further averred that the defendant is victim of circumstances and she never took any loan, as alleged by the plaintiff, as she was not in need of same and she became Suit No.42/2013 Page No.4 of 19 emotional fool and became ready to help the wife of the plaintiff for her daughter's marriage and further averred that there was no give and take of any amount between the parties and the cheques in question were never issued against discharge of any liability or debt or any other consideration and further stated that it is a matter of record that the case u/s 138 of N I Act, is still pending in another court against the defendant and further averred that the defendant has filed the leave to defend to prove her case on merits and in case of leave to defend is not granted to her, her rights would be prejudiced and further averred that the defendant has a valid defence for grant of unconditional leave and prayed for granting of unconditional leave to defend.
6. On the other hand, the plaintiff has filed reply to the said application and denied that the suit of the plaintiff is based on false, frivolous and concocted facts and is not maintainable. It is stated that the suit has been filed on real and correct facts. It is also denied that the suit is liable to be dismissed for want of cause of action. It is stated that the suit has been properly valued. It is further denied that the suit is not maintainable due to concealment and suppression of material facts. It is further stated that the defendant has not disclosed that what material facts have been concealed and Suit No.42/2013 Page No.5 of 19 suppressed by the plaintiff and reiterated the averments made in the plaint and after denying the other averments made in the leave to defend, prayed for dismissal of the leave to defend and also prayed for decreetal of the suit.
7. I have heard the ld. counsels for the parties and perused the record.
8. The Ld. Counsel for the defendant has submitted that the defendant has not taken any loan of Rs.10,26,000/ from the plaintiff, as claimed by the plaintiff. He has also submitted that since the marriage of the daughter of the plaintiff was to be solemnized, so, the wife of the plaintiff had approached to the defendant and sought monetary assistance from the defendant, as, she was desirous to repair her house prior to the marriage of her daughter and also submitted that the defendant had agreed to help to the wife of the plaintiff, whereas, the plaintiff is not known to the defendant. He has also submitted that the defendant had issued 3 undated cheques in the month of January, 2012 of Rs. 10,26,000/ and instructed to the wife of the plaintiff to not present the same, prior to the permission of the defendant, as the defendant was likely to get money from her mother, as her mother was to sell her property to give the money to her and further submitted that the wife of the Suit No.42/2013 Page No.6 of 19 plaintiff had committed breach of trust and presented the cheques and same were dishonored and also submitted that since the plaintiff has failed to bring on record any proof to show that he was having capacity to give Rs. 10,26,000/ to the defendant and this is a triable issue, as to from whom and from where, the plaintiff had procured such a huge amount for giving loan to the defendant and submitted that since there is nothing on record brought by the plaintiff to show that he was having capacity to pay such a huge loan to the defendant, so, in the absence thereof, the suit of the plaintiff cannot be decreed and the defendant is entitled for grant of unconditional leave to defend.
9. On the other hand, the Ld. counsel for the plaintiff has submitted that the plaintiff is well known to the defendant. There is admission in the reply to the legal notice regarding the friendly relationship between the parties to the present lis. He has also submitted that since the defendant was in need of money to boost her business, so, the plaintiff had advanced family loan of Rs. 10,26,000/ to the defendant and in part payment thereof, the defendant had issued two cheques bearing no. 000040 dated 17.1.2012 of Rs. 1,50,000/ and cheque no.650297 dated 20.4.2012 of Rs. 87,000/ and both the cheques were dishonoured and thereafter, the Suit No.42/2013 Page No.7 of 19 plaintiff had approached to the defendant and the defendant had acknowledged her liability to pay the amount of Rs. 10,26,000/ on dated 26.6.2012 and issued 3 cheques bearing no. 075833 dated 4.7.2012 of Rs. 3,50,000/, cheque no. 030866 dated 19.7.2012 of Rs. 3,50,000/ and cheque no. 030867 dated 1.8.2012 of Rs. 3,26,000/ and this acknowledgment of liability is there on the record in original. He has also submitted that the daughter of the plaintiff is still studying, so, there is no question of marrying her and the defendant has concocted a false story in her leave to defend. He has further submitted that the plaintiff is having triple storied building, so, there is no question of getting his house repaired. He has further submitted that in the leave to defend filed by the defendant, she has admitted to have issued 3 cheques of Rs.10,26,000/, as, she was desirous to advance the loan to the plaintiff and further submitted that plaintiff has already filed a complaint case u/s 138 of the N I Act in the court of ld. MM and the defendant had filed an application u/s 145(2) of N I Act and copy thereof is placed on the record and the plaintiff has also given the statement regarding the same. He has further submitted that in the said application u/s 145(2) of the N I Act, the defendant has written that signature of the Suit No.42/2013 Page No.8 of 19 defendant was obtained on some cheques under the threat. He he has also submitted that had there been any threat, the defendant could file a complaint to the police or in the court, but, she has not filed any complaint in the police station or in the court and further submitted that the stands taken by the defendant in the leave to defend, legal notice and in the application u/s 145(2) of N I Act are self contradictory and cannot be relied upon. Since the plaintiff is a Govt. servant and serving as Asstt. Controller in the I.P.G.C.L. and drawing a handsome salary, the defendant has concocted a false story and the defence taken by the defendant is moonshine and since the defendant has not raised any triable issue in her leave to defend and the defendant is opting dilatory tactics, as, it is clear from the record and further submitted that great prejudice will be caused to the plaintiff, if, the leave to defendant is granted to the defendant and further submitted that the defendant does not deserve any leniency, as she has taken the loan and issued two cheques towards part payment and when both the cheques were dishonoured, thereafter, the plaintiff had acknowledged her liability to pay the amount of Rs. 10,26,000/ on dated 26.6.2012 and issued 3 cheques of total amount of Rs. 10,26,000/ in discharge of her liability and Suit No.42/2013 Page No.9 of 19 this acknowledgment of liability is there on the record in original and since the issuance of three cheques of total amount of Rs. 10,26,000/ have not been denied in the leave to defend and the story concocted by the defendant is not inconsonance with the contents of the application filed by the defendant u/s 145(2) of N I Act, so, the leave to defend filed by the defendant is liable to be dismissed and the suit of the plaintiff is liable to be decreed.
10. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.
11. Their lordship of Supreme Court of India in case M/s. Mechalec Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, is pleased to laid down the following principles for granting or refusal to grant the leave to defend :
a) 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 judgment and the defendant is entitled to unconditional leave to defend.
b) If the defendant raises 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 Suit No.42/2013 Page No.10 of 19 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 had a defence, yet, shows such a state 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.
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 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 give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. Suit No.42/2013 Page No.11 of 19
12. Perusal of the record shows that the plaintiff has filed the present suit u/o 37 of CPC for recovery of Rs.10,26,000/ on the basis of 3 cheques bearing no. 075833 dated 4.7.2012 of Rs. 3,50,000/, cheque no. 030866 dated 19.7.2012 of Rs. 3,50,000/ and cheque no. 030867 dated 1.8.2012 of Rs. 3,26,000/, issued by the defendant. From the perusal of the record it is also clear, that the plaintiff has taken the plea that the defendant was in need of money to boost her business, so, she has taken the friendly loan from the plaintiff and in order to discharge her liability to pay the part payment, the defendant had also issued two cheques bearing no. 000040 dated 17.1.2012 of Rs. 1,50,000/ and cheque no. 650297 dated 20.4.2012 of Rs. 87,000/ and both these cheques were dishonoured and the plaintiff had approached to the defendant and the defendant had acknowledged the amount of Rs. 10,26,000/ in writing and issued three cheques bearing no. 075833 dated 4.7.2012 of Rs. 3,50,000/, cheque no. 030866 dated 19.7.2012 of Rs. 3,50,000/ and cheque no. 030867 dated 1.8.2012 of Rs. 3,26,000/.
13. From the perusal of the record it is clear, that the defendant has taken the plea that the wife of the plaintiff was in need of money to repair his house, as she was to solemnize the marriage of her daughter and the defendant had agreed to Suit No.42/2013 Page No.12 of 19 help to the wife of the plaintiff and she had issued 3 cheques of a total amount of Rs.10,26,000/. It is pleaded by the defendant in her leave to defend, that the defendant had instructed to the wife of the plaintiff to not present the said cheques, prior to the permission of the defendant, as she was to get money from her mother, but, the plaintiff has presented the said cheques and the said cheques have been dishonored. The ld. counsel for the defendant has submitted that the defendant has not taken any loan from the plaintiff, as claimed by the plaintiff. Whereas, the plaintiff has pleaded that a friendly loan was taken by the defendant in order to boost her business. From the perusal of the record, it is clear that the defendant has pleaded in her leave to defend, that she does not know to the plaintiff and she had issued all the trio cheques to the wife of the plaintiff.
14. Whereas, from the perusal of the reply dated 28.07.2012 of legal notice shows that the defendant has admitted friendly relation with the plaintiff and from the perusal of all the trio cheques of a total amount of Rs. 10,26,000/, it is clear that all the trio cheques have been issued in the name of the plaintiff and from the perusal of the acknowledgment also, it is clear that the defendant has acknowledged the amount of Rs.10,26,000/ and also written Suit No.42/2013 Page No.13 of 19 therein that she had issued three cheques of total amount of Rs.10,26,000/ and from the perusal of the application u/s 145(2) of the N I Act, filed in the court of Ld, MM, photocopy whereof is placed on the record by the plaintiff and certified copy thereof, placed on record by the defendant in this court, it is clear that the defendant has taken the plea that the signatures of the defendant were obtained on the cheques under the threat, but, had there been any threat, the defendant could file a complaint to the police or in the court, but, till date, no complaint has been filed by the defendant in the police station or any court of law and in the absence thereof, such statement of the defendant does not inspire any confidence that the said signatures were obtained under any threat. It is worthwhile to mention here that defendant has denied to have filed any such application U/s 145(2) of N I Act, in the court of Ld. MM, whereas, from the perusal of the copy of the said application, it is clear that the name on the said application is written of her counsels Sh. Rajiv Gupta, Sumitra Singhal and Himanshu Gupta and the said application is signed by S. Singhal, Advocate and had that application been filed without having instruction of the defendant herein or her counsel by S. Singhal, Advocate, the defendant or her counsels Sh. Rajiv Gupta and Sh. Himanshu Gupta could take action against the Advocate S. Singhal. The said application Suit No.42/2013 Page No.14 of 19 was filed in the court of Ld. MM on 17.10.2012 and till date no complaint against Ms. S. Singhal, Advocate has been filed either in the Bar Council or in any court of law, so, in the absence thereof, it cannot be assumed or presumed that the application U/s 145(2) of N I Act, filed in the court of Ld. MM on behalf of defendant (herein), by Ms. S. Singhal, without having any instruction of the defendant (herein) or her counsel. From the perusal of the leave to defend and from the perusal of the reply to the legal notice given by the defendant, it is clear that the defendant has admitted in the reply to the legal notice about the friendly relations between the parties to the present lis and issuance of three cheques is also well admitted by the defendant in her leave to defend and the acknowledgment dated 26.06.2012 also fortifies the contention of the plaintiff and with the mere saying by the defendant that the acknowledgment does not bear the signature of the defendant is not sufficient. Had the defendant not put her signature on the acknowledgment dated 26.06.2012 relied upon by the plaintiff, the defendant could file the complaint before the police or any court of law for forging her signature thereon, but till date, no complaint has been filed by the defendant against the plaintiff, whereas, the plaintiff has filed the present case on the basis of three cheques of a total amount of Rs.10,26,000/ and Suit No.42/2013 Page No.15 of 19 acknowledgment, which are placed on the record in original by the plaintiff and since the stands taken by the defendant in the leave to defend and in the application u/s 145(2) of N I Act, filed in the court of Ld. MM, are totally contradictory. The ld. counsel for the defendant has submitted that the said application was filed in the court of Ld. MM without having any instruction of the defendant (herein). But, in view of above discussion, such submission is held to be without any substance. The plaintiff has relied upon the reply to the legal notice dated 28.07.2012 sent by the defendant through her counsel and the counsel for the defendant has not challenged the authenticity thereof, nor the defendant has controverted the contents thereof and it is pertinent to mention here that in para no.6 of the reply to the legal notice dated 28.07.2012, the defendant (herein) has taken the plea that she had issued post dated cheques, whereas, in her leave to defend, she has stated that she had issued undated cheques, whereas, in the application u/s 145(2) of NI Act, she has taken the plea that her signatures were obtained on the cheques under the threat and she has also lodged a complaint with the Ministry of Home Affairs and to Commissioner of Police. But, the defendant has failed to bring on record any such complaint, filed either in the Ministry of Home Affairs or to Commissioner of Police and defendant has taken the Suit No.42/2013 Page No.16 of 19 contradictory pleas in all these three documents. The defendant has also taken the plea that the plaintiff was desirous to repair her house prior to the marriage of his daughter. But, the ld. Counsel for the plaintiff has submitted that the plaintiff has triple storied building and his daughter is still studying, so, there is no question of her marriage and this fact of triple storey building of the plaintiff and the fact that that daughter of the plaintiff is still studying is not denied by the defendant or her counsel, so, in view of the same, the plea taken by the defendant that the plaintiff was desirous to take the financial assistance from the defendant for repair of his house or marriage of his daughter, does not inspire any confidence.
15. For grant of leave to defend, the defendant was under
obligation to show that he has reasonable defence and since issuance of the three cheques is not denied by the defendant in her leave to defend and the plea taken by the defendant in her leave to defend does not inspire any confidence in view of contradictory stands taken by the defendant in the leave to defend and application u/s 145(2) of Negotiable Instruments Act, filed in the court of the Ld. MM and in the reply to the legal notice dated 28.07.2012. In view of above discussion, this court is of the considered view that defence taken by the Suit No.42/2013 Page No.17 of 19 defendant is illusory, sham and moonshine, so, it does not inspire any confidence and since the case of the plaintiff is based on the three cheques issued by the defendant of total amount of Rs.10,26,000/ and on the basis of acknowledgment written by the defendant, which is also placed on the record in original and the fact of issuance of three cheques of total amount of Rs.1026000/ is not denied by the defendant and in the considered opinion of this court, the triable issues are not involved in the present matter. So, taking into consideration the facts and circumstances of the case in their entirely, and in view of the law laid down by the Hon'ble Apex Court in case M/s Mechalec Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, I am inclined to hold that the leave to defend, filed by the defendant, is devoid of merit, so the same is hereby dismissed.
16. The plaintiff has claimed interest @ 24% p.a. w.e.f. 01.08.2012 till the realization of the amount. But, in the considered opinion of this court, the rate of interest claimed by the plaintiff is exorbitant, so, the same cannot be granted and as per provisions of order 37 CPC, the interest cannot be granted till the realization of the amount, therefore, I am inclined to hold that it would be reasonable to hold that the Suit No.42/2013 Page No.18 of 19 plaintiff is also entitled to interest @ 6% p.a. from the date of institution of the suit till the date of decree.
17. Accordingly, I am inclined to hold that the plaintiff is entitled to recover an amount of Rs.10,26,000/ alongwith interest @ 6% per annum from the defendant from the date of institution of suit till the date of decree. Therefore, the suit of the plaintiff for an amount of Rs. 10,26,000/ alongwith interest @ 6% per annum from the date of institution of the suit till the date of decree, is hereby decreed in favour of the plaintiff and against the defendant and plaintiff is also entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open Court on: 27.11.2014 ( Pawan Kumar Matto ) Additional District Judge01 (East)/KKD/Delhi Suit No.42/2013 Page No.19 of 19