Delhi District Court
Sh. Akeel Ahmed vs Mahesh Kumar on 10 September, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No. 01/11
Date of Institution of Appeal : 03.01.2011
Date on which Reserved for Order : 10.09.2012
Date of Judgment : 10.09.2012
Case I.D. Number : 02402C0365422011
IN THE MATTER OF:-
SH. AKEEL AHMED
S/O SH. BUDDHAN KHAN
R/O H. NO. D-17-A,
GALI NO. 8,
JYOTI COLONY, SHAHDARA,
DELHI-32.
.......... APPELLANT
Versus
MAHESH KUMAR
S/O NOT KNOWN
R/O C-65, GALI NO. 8,
JYOTI COLONY, SHAHDARA,
DELHI-32.
.......RESPONDENT
ORDER
1. This appeal has been filed against the impugned order dated 26.11.2010 passed by the Ld. Trial Court by which the application of the defendant under Order 37 Rule 3 (5) CPC for leave to defend the suit was dismissed and consequently the suit of the respondent / plaintiff for recovery for Rs.60,000/- was decreed.
2. Brief facts leading to filing of this appeal are that the plaintiff filed a suit before the Trial Court under Order 37 of the CPC claiming that he had friendly relations with the defendant and that on 15.03.2009 defendant sought financial assistance of Rs. 60,000/-. Plaintiff has claimed that in view of the relationship, he gave Rs.60,000/- to the plaintiff in cash as a friendly loan. After about two months, the defendant issued a cheque for Rs.60,000/- dated 16.05.2009 from his account in favour of the plaintiff RCA No. 01/11 Page No. 1/5 towards discharge of the loan. Plaintiff has averred that he presented the said cheque to his bank but the same was returned dishonoured with the remarks 'funds insufficient' on 22.05.2009. Plaintiff thereafter sent a notice dated 12.06.2009 to the defendant under Section 138 Negotiable Instrument Act, to which the defendant did not respond. Plaintiff, therefore filed a suit seeking recovery of Rs.60,000/-.
3. After entering into appearance, the defendant filed an application under Order 37 Rule 3 (5) CPC praying for leave to defend the suit. In his affidavit in support of the application, the defendant has contended that suit was filed by the plaintiff on the basis of forged and manipulated documents / cheque. Defendant has claimed that the plaintiff represented himself as the agent of M/s ICICI Bank and contacted him for approval of a loan from the said bank. Defendant states that he believed the plaintiff and issued three blank cheques without filling the amount and handed them over to the plaintiff who assured the defendant that the same were required as security for processing the loan. Defendant has claimed that he never took loan of Rs.60,000/- from the plaintiff nor issued any cheque to him towards the discharge of the same. Defendant has claimed that when M/s ICICI Bank refused to sanction the loan, the defendant requested the plaintiff to return the cheques but the plaintiff refused to do so.
4. Reply to this application was filed by the plaintiff in which he denied the averments made by the plaintiff. Plaintiff has reiterated his case as set up in the plaint.
5. After considering the material on record the Ld. Trial Court by the impugned order dismissed the application praying for leave to defend and decreed the suit of the plaintiff.
6. Before this Court, the Ld. Counsel for the appellant / defendant has argued that the Ld. Trial Court has failed to appreciate that in a matter relating leave to defend a summary suit, the defendant will be entitled to leave to defend where he raises a triable issue. Counsel for appellant relied on the judgments of the Hon'ble High Court in the cases of Rana Inderjeet Singh Vs. Kembiotic Laboratories reported in 2009 (3) CCC 465 Delhi and Hari Niwas Gupta Vs. Om Propmart (P) Ltd. reported in 2012 (2)CLJ 484 Delhi.
RCA No. 01/11 Page No. 2/57. Counsel for respondent / plaintiff on the other hand has supported the impugned order.
8. I have heard the Ld. Counsel for the parties and have perused the record. The Ld Trial Court while rejecting the application for leave to defend the suit has observed in para no. 8 of the impugned order as under:-
"8. In the present case, perusal of record shows that the cheque issued by the defendant has been returned back with the remarks "Funds insufficient". The contention of the defendant that the defendant had not signed the cheque or that the signatures of the defendant are false appears to be incorrect as the cheque has not been dishonoured for the reasons difference in the signatures and the same appears to be merely an afterthought. Similarly, the contention of the defendant that plaintiff had obtained three blank cheques from him on the pretext of getting loan approved for him from ICICI Bank are not supported by any documentary evidence to this effect. Counsel for the defendant has filed photocopies of the complaint dated 13.11.09 and 6.7.10 in an attempt to show that he had taken action against the plaintiff. However, it is pertinent to note that the cheque on which the present suit is based is dated 16.5.09 and was dishonoured on 22.5.09. The plaintiff had issued legal notice to the defendant on 12.6.09 by way of registered Post as well as UPC. The defendant has failed to give any reply to the said notice and copy of complaints filed by the defendant are much after the filing of the suit by the plaintiff for recovery of the cheque amount. It is pertinent to note here that the plaintiff filed the present suit on 15.10.09 and the defendant was served with summons for appearance on 10.11.09. The first complaint lodged by the defendant is dated 13.11.09 and the second complaint is dated 6.7.10 i.e. after the defendant was served with the summons of the suit. Hence, the defence taken by the defendant appears to be afterthought and an attempt to wriggle out of his liability to make the payment of cheque. It is also beyond belief RCA No. 01/11 Page No. 3/5 that defendant kept silent even after the plaintiff presented the cheque and the same was dishonoured and did not file any complaint for cheating against the defendant immediately thereafter. Similarly, the conduct of the defendant in keeping mum and not replying to the legal notice containing serious allegations against him gives rise to an adverse inference against him that he was under the liability to pay the cheque amount. I am supported in views by the judgment of Kalu Ram Vs. Sita Ram, 1980 Rajdhani Law Reporter (Note) 44."
(Emphasis supplied)
9. As per the Ld. Trial Court, the defendant has made complaints against the plaintiff on 13.11.2009 and 06.07.2010 regarding misuse of cheques in question, both of which are much after the notice issued by the plaintiff i.e. 12.06.2009 and filing of the suit on 15.10.2009. Ld. Trial Court has observed that it was not believable that the defendant even after presentation of the said cheques for payment did not take any action against the plaintiff. Ld. Trial Court has relied on the judgment of the Hon'ble Supreme Court in the case of Mechalec Engineers and Manufacturers Vs. Basis Equipment Corporation reported in AIR 1977 SC 577.
10. The principles on which leave to defend the summary suit are the subject matter of the catena of decisions of the Hon'ble Supreme Court and also the Hon'ble High Court. Basic principle is that the defendant should disclose a defence which raises a triable issue. Such defence should not be in the nature of moonshine or sham. Hon'ble High Court in the case of Rana Inderjeet Singh Vs. Kembiotic Laboratories (supra) after considering the judgment of the Hon'ble Supreme Court in the case of Mechalec Engineers (supra) has been pleased to hold that leave must be granted unconditionally if defence is legal and equitable and even if it may not ultimately turn out to be a good defence. Hon'ble High Court also considered the question of imposition of conditions while granting leave to defend and held that unless it can be shown that the defence is not bonafide, conditions should not be imposed.
11. In the present matter, defendant has claimed that the plaintiff had represented RCA No. 01/11 Page No. 4/5 himself as an agent of M/s ICICI Bank Ltd. and assured him grant of a loan and for this purpose took three signed blank cheques from the defendant on the pretext that the same were required for processing the loan. Defendant has claimed that he never took any loan from the defendant nor issued any cheque towards the payment of the loan. Defendant has claimed that he asked the plaintiff several times to return the cheques after loan was not granted but plaintiff refused to do so.
12. In the opinion of this Court the defence raised by the defendant of handing over the cheques to the plaintiff for processing a loan is a triable issue and would require trial. That this defence may not turn out to be a good defence has no bearing on the question of leave to defend. However, at the same time the circumstances of this case disclose that the defendant has not taken any action against the plaintiff prior to presentation of the cheque immediately thereafter even when the plaintiff has refused to return the blank signed cheques given by him. The defence does not appear bonafide. Hence this is a fit case where leave to defend the suit should be granted subject to the conditions.
13. For the reasons recorded above, the present appeal is allowed. Impugned order is set aside and the defendant is granted leave to defend the suit subject to the condition that he deposits Rs.60,000/- before the Trial Court within four weeks from today. During the pendency of this appeal, stay of the execution of the decree was granted to the appellant subject to him depositing 50% of the decreetal amount before the Trial Court which is stated to have been deposited. Thus in terms of this order the defendant / appellant will be required to deposit the balance amount only. If such deposit is made, it will be open for the defendant to pray before the Ld. Trial Court to keep the amount in fixed deposit to prevent the erosion of the value of the money during the pendency of the suit.
14. TCR be sent back with a copy of this order. File be consigned to the Record Room.
Dictated to the Steno and announced in the Open Court today i.e. 10.09.2012.
(REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA No. 01/11 Page No. 5/5