Delhi District Court
1 Ashutosh Ahlulwalia vs . Joseph Samuel Anr. on 17 February, 2012
1 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT
JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX
NEW DELHI
Civil Suit No. 97/11
In the matter of :
Sh. Ashutosh Ahluwalia .....Plaintiff
Versus
Sh. Joseph Samuel ( Alias Raj Kumar) & Anr. .....Defendants
ORDER :
1 This is an application under order XXXVII rule 3 (5) CPC filed on behalf of the defendants for leave to defend. The plaintiff has filed a suit for recovery under order XXXVII CPC against both the defendants claiming that defendant no. 1 was inducted as a tenant on the half portion of Mezzanine Floor of 7, Community Centre, East of Kailash, New Delhi by the plaintiff, initially at a monthly rent of Rs. 55,000/ from August, 2007 and the rent was increased from time to time. Post dated cheques were issued by defendant no. 1 in favour of the plaintiff to secure the rent payable, some of which were dishonoured for want of sufficient funds in the account of defendant no. 1. Defendant no. 2 has been impleaded as a performa defendant. Since all the cheques were signed by defendant no. 1 only. The amount is claimed on account of thirteen cheques issued by defendant no. 1 which were dishonoured, interest at the rate of 18 % per annum, claim on account of cheque dishonouring charges, notice cost etc. 2 The application for leave to defend has been filed on the ground that money payable under all the cheques have been paid in cash by defendants to the plaintiff, who has failed to return the post dated cheques issued. Defendants have 2 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.
also offered to pay the rent from the month of March, 2011 onwards, subject to plaintiff returning the post dated cheques. Defendant has also claimed that he is entitled to a sum of Rs. 30,00,000/ against the plaintiff and has reserved his right to file the counter claim against the plaintiff.
3 In reply to the application for leave to defend filed by the plaintiff, it has been denied that payment under the uncashed cheques was received in cash from the defendants by the plaintiff. Further, legal objection has been taken as regards failure of the defendants to file the application for leave to defend under order XXXVII rule 3 (5) CPC within time claiming that summons for judgment were served on 12.08.2011, and application for leave to defend was filed on 29.08.2011 after expiry of period of ten days available, for filing the application for leave to defend.
4 Arguments were heard on behalf of both the parties. Plaintiff argued the case himself and arguments were advanced on behalf of the defendants by their counsel. The plaintiff has relied upon a case decided by Hon'ble Delhi High Court titled as Kishan Bharwany vs. V.P. Aggarwal reported as 97 (2002) Delhi Law Times 723. Plaintiff has further relied upon another case decided by Hon'ble Punjab and Haryana High Court titled as M/s Universal Fasteners and Ors. vs. Bank of Baroda and Anr. in the suit titled as Kishan Bharwany vs. V.P. Aggarwal, Hon'ble Delhi High Court had directed decreeing of a suit of the plaintiff after the defendant failed to apply for leave to defend within 10 days despite service of summons for judgment. There was no question of any delay in filing the application for leave to defend, as the tenant in the case, relied upon on behalf of the plaintiff, has failed to appear and then suit was decreed. In the case titled as M/s Universal Fasteners and Ors. vs. Bank of Baroda and Anr. decided by Hon'ble Punjab and Haryana High Court, while deciding the appeal against an order decreeing the suit of the plaintiff under order XXXVII CPC, Hon'ble Punjab and 3 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.
Haryana High Court had gone into the total conduct of the defendants. It was observed that they avoided service of the suit and were served only by way of publication. They had appeared on 12.02.1985 and got the necessary documents from the bank and despite that no application for leave to defend the suit was filed by them. So, this was also a case of defendants failing to file any application for leave to defend.
5 In the application for leave to defend, the defendants have claimed that they were served on 20.08.2011. The application for leave to defend was filed on 29.08.2011. As per the report of the process server, summons were taken to two addresses of defendant no. 1. He was served on 20.08.2011 on the second address. Similarly, defendant no. 2 had given two addresses in the application entering appearance and was served at one address at 20.08.2011. Even if, it is taken that defendant no. 1 was served on 12.08.2011, the suit filed by the plaintiff cannot be decreed, as defendant no. 2 was served only on 20.08.2011 and further, it is not case of the defendants failing to file the application for leave to defend, which has been filed by them on 29.08.2011. On merits also, the suit of the plaintiff is based on cheques issued by defendant no. 1 in his favour. The plaintiff is claiming that premises had been given on rent to both the defendants and simply because, the cheques have been issued by defendant no. 1, defendant no. 2 is not a performa party simply as no claim made against defendant no. 2. The claim is being made by the plaintiff under a lease entered between the plaintiff and both the defendants. The plaintiff is also claiming agreed rate of interest @ 18 % per annum by virtue of a covenant in the agreement, so the claim of the plaintiff as against both the defendants cannot be construed so as to make it a claim against defendant no. 1 only simply because the cheques were issued by defendant no. 1 only. Further, there is also an issue of payments made in cash by the defendants, which are being claimed and which cannot be rejected out rightly as instead of depositing the cheques issued by defendant from month to month, the plaintiff 4 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.
deposited 13 cheques in one stroke and that by itself, is sufficient to ensure that cheques are not honoured by the bank for want of that much money in the account of defendants on that day. Defendants are claiming that all the cheques till 31.05.2010 were cleared and they were willing to pay the rent after 31.05.2010 on condition of return of the post dated cheques given, as such, the defendants are granted unconditional leave to defend the suit filed and application under order XXXVII rule 3 (5) CPC is allowed.
Announced in the open Court (J.P.S. MALIK)
on 17.02.2012 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI : 17.02.2012
5 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.
CS NO. 97/11
17.02.2012
Present: Counsel for the defendants.
Vide separate order of the date, application under order XXXVII rule 3 (5) CPC, moved by the defendants for leave to defend is allowed and defendants are granted unconditional leave to defend the suit.
Matter is adjourned to 26.03.2012 for written statement.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 17.02.2012 6 Ashutosh Ahlulwalia vs. Joseph Samuel Anr.