Delhi District Court
Janak Rawal vs Ashok Pathank on 31 July, 2012
In the Court of Pawan Kumar Matto : Additional District Judge : East
District : Karkardooma Courts : Delhi.
S no.36/11
IN THE MATTER OF :
Janak Rawal .....Plaintiff
v/s
Ashok Pathank ....defendant
ORDER
1. This order of mine will dispose of an application filed by the defendant for grant of 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. 16,02,650/, against the defendant, on the averments that the plaintiff is a businessman and the permanent resident of 205, Ram Vihar, Delhi and the defendant is the proprietor of M/s Seagulls and the plaintiff and the defendant are well acquainted with each other for last few years and the defendant had approached to the plaintiff for financial advice, as well as, assistance in his business. It is further stated that between the period of October,2008 to April 2009, the defendant had visited the plaintiff's home and requested to the plaintiff S.no. 36/2011 Janak Rawal V/s Ashok Pathak 1 Of 18 for the financial assistance, as the defendant was facing financial crunch in his business and due to past healthy relation with the defendant, the plaintiff had given a loan of Rs. 16,02,650/ to the defendant for a period of 25 months and the defendant had undertaken to pay the interest @ 1.5% on the amount of 13,50,000/ and also undertaken to return the remaining amount of Rs. 2,52,650/ in twenty five instalments of Rs. 10,000/ per month.
3. It is further stated that on 12.4.2009, a meeting was held in the office of the defendant, at Vishwas Nagar,Delhi and the defendant had executed a promissory note, as well as receipt of the said transaction, in which, the defendant had duly admitted his liability of Rs.16,02,650/ towards the plaintiff and has also admitted his liability of Rs. 2 lakhs towards Shri Harish Arora, who is the common friend of the plaintiff and the defendant, in the presence of Shri Harish Arora and Shri Harish Arora had also signed the said promissory note dated 12.4.2009.
4. It is further stated that the defendant had issued 12 post dated cheques in favour of the plaintiff and handed over the same to the plaintiff towards the part payment of his outstanding/legal liability, with the assurance that all the cheques would be honoured on presentation and the details of the cheques are as under: S.no. 36/2011 Janak Rawal V/s Ashok Pathak 2 Of 18 Cheque no. Dated Amount Drawn on
1. 419216 29.12.2009 Rs.1,00,000/ ICICI Bank,Sahibabad.
2. 419217 30.01.2010 Rs. 1,00,000/ do 3.419218 28.02.2010 Rs. 1,00,000/ do
4. 419219 31.03.2010 Rs.1,00,000/ do
5. 171127 27.04.2010 Rs. 18,250/ ING VYSA Bank Preet Vihar. 6.171128 30.04.2010 Rs. 15,000/ do
7. 419220 30.04.2010 Rs. 1,00,000/ ICICI Bank, Sahibabad.
8. 419221 29.05.2010 Rs. 1,00,000/ do
9. 419222 30.06.2010 Rs.1,00,000/ do
10. 419223 25.07.2010 Rs.1,00,000/ do 11.419224 25.08.2010 Rs.1,00,000/ do 12.236400 13.09.2010 Rs.5,00,000/ Dena Bank Lodhi Rd,N.Delhi.
5. It is further averred that the defendant had failed to comply with the conditions of the promissory note dated 12.4.2009 and he neither paid the promised amount nor approached to the plaintiff till November,2009 and when the plaintiff had approached to the defendant and demanded the due amount, the defendant felt sorry for his past conduct and requested to the plaintiff with folded hands to not present the cheques, as the defendant's firm was facing financial problems due to world wide recession and assured to the plaintiff that he will clear all the due payments in the month of April,2010, as he was in hope to get the payment from the market upto March,2010 and relying up on the words of the defendant, the plaintiff did not present the cheques till March,2010 S.no. 36/2011 Janak Rawal V/s Ashok Pathak 3 Of 18 and when again in the month of April,2010, the plaintiff had approached to the defendant and demanded the due amount, the defendant again repeated the same story and asked to the plaintiff to present the cheque bearing no. 171127 dated 27.4.2010 amount to Rs. 18,250/ drawn at ING VYSA BANK, Preet Vihar Branch and assured to the plaintiff that the said cheque will be encashed on presentation, but, on presentation of the said cheque, the said cheque got dishonoured and when the plaintiff informed about the same to the defendant, he again felt sorry and assured to the plaintiff that the entire friendly loan will be cleared in the month of September,2010 and due to the past relations, the plaintiff did not initiate the legal action against the defendant and waited for other 5 months. It is further stated in the month of September,2010, the plaintiff again approached to the defendant, and demanded the friendly loan's amount, the defendant had asked to the plaintiff to present eight cheques out of the above said 12 cheques in the bank and the plaintiff again presented the eight cheques with his bank, but again all the eight cheques got dishonoured and when the plaintiff again approached to the defendant for the return of the friendly loan, the defendant had not only refused to pay the friendly loan amount, but also threatened to the plaintiff to face dire consequences, if the plaintiff would file any case.
6. It is further stated that the plaintiff had been requesting to the defendant S.no. 36/2011 Janak Rawal V/s Ashok Pathak 4 Of 18 again and again to clear his outstanding, but the defendant had been turning down the request of the plaintiff, on one pretext or the other and he is harassing the plaintiff. It is further stated that since the defendant had defaulted in making the payment and unlawfully and illegally withholding the payment due and payable by the defendant to the plaintiff without any rhyme or reason, the plaintiff sent a legal notice dated 24.9.2010, through regd. AD, courier and UPC to the defendant which is duly served upon the defendant, but the defendant neither replied to the same nor paid any amount to the plaintiff till date and prayed for the decreetal of the suit amount alongwith pendentelite and future interest and costs.
7. The summon of the suit were issued to the defendant. On the service of the same, the defendant has filed his appearance. Thereafter, the plaintiff has filed the application for issuance of summons for judgment and the same were ordered to be issued to the defendant and on the service thereof, the defendant has filed the application for leave to defend, on the averments that the plaintiff is a property dealer and money lender of the area and the plaintiff used to give the money on very high interests by taking the undue advantages of the persons. It is further stated that he was in dire need of money and he had asked to the plaintiff to lend an amount of Rs. 5 lakhs against the original documents of the property S.no. 36/2011 Janak Rawal V/s Ashok Pathak 5 Of 18 bearing no. 164/1, Akbarpur, Bahrampur, Ghaziabad and the plaintiff told to the defendant that one of the friend of plaintiff Shri Harish Arora will give Rs. 5 lakhs to the defendant as loan on high interests rate against the original documents of the above said property and the said property is in the name of the mother of the defendant. It is further stated that a meeting of the defendant was fixed with the plaintiff, and Shri Harish Arora and in the said meeting the plaintiff had told to the defendant that Shri Harish Arora and the plaintiff will give Rs. 4 lakhs to the defendant jointly and the defendant had to sign on a blank paper and a entire blank cheque book of 10 cheques has to be delivered to the plaintiff and it was agreed that all the blank cheques will be only for the purpose of security and plaintiff or Shri Harish Arora will not present the said cheques without written permission of the defendant and the plaintiff also assured to the defendant, that all the above said cheques, blank signed papers and original documents of the property of the mother of the defendant were kept only for security purpose and the plaintiff will not misuse the said documents, at any point of time and the defendant believing on the statement of the plaintiff had handed over the original documents of the above said property , a signed blank paper and entire blank signed cheque book of 10 cheques to the plaintiff and the plaintiff and Shri Harish Arora had handed over Rs. 4 lakhs to the defendant in cash and the S.no. 36/2011 Janak Rawal V/s Ashok Pathak 6 Of 18 defendant had agreed to pay Rs. 33,000/ (Rs. 10,000/ as interest and Rs.23,000/ against the principle amount) as monthly instalment, either to the plaintiff or Shri Harish Arora, till the disposal of the entire loan.
8. It is further stated that the defendant had paid the instalments of Rs. 33,000/ to the plaintiff/Shri Harish Arora till April,2010 regularly, which comes to Rs. 4,29,000/ and the defendant had also paid Rs. 65,000/ to the plaintiff and had asked to the plaintiff to return all the documents including the cheques, but the plaintiff told to the defendant that he has to pay Rs. 2 lakhs more, otherwise, the plaintiff will not return the above said documents. It is further stated that the plaintiff and Shri Harish Arora had told to the defendant that till he gives Rs. 2 lakhs to them, they will not return the documents in original to him. It is further stated that the promissory note dated 12.4.2009 is a fabricated document, as the defendant had only signed a blank paper and the contents thereof were written by the plaintiff or Shri Harish Arora and the plaintiff had put his names and dates on the all the cheques mentioned above and presented in the bank without instructions of the defendant and further stated that the documents and blank cheques were only given for the loan of Rs. 4 lakhs and since the entire loan amount has been paid by the defendant, the plaintiff and Shri Harish Arora are bound to return all the documents and cheques to the defendant. It is further stated that the said cheques S.no. 36/2011 Janak Rawal V/s Ashok Pathak 7 Of 18 were not issued by the defendant in respect of any liability towards the plaintiff or Shri Harish Arora, the said cheques were only given for security purpose.
9. It is further stated that the plaintiff has concocted a false story in the plaint and the plaintiff has filed the present suit against the defendant without any cause of action without impleding Shri Harish Arora and prayed for grant of leave to defend.
10.The plaintiff has filed the reply to the said application and contested the same on the grounds interalia that the application under consideration is not maintainable, as no triable issue is involved which may entitle the defendant to get leave to defend and the present application is liable to be dismissed with cost. The plaintiff has denied that the plaint filed by the plaintiff is entirely based on fabricated and false facts. It is also stated that the defendant has tried to mislead this court by way of stating wrong facts. The plaintiff has denied that he is a property dealer and used to give the money on very high interests. It is stated that the plaintiff is reputed builder and developer and engaged in the business of development and construction of the real estate in Delhi and he has helped the defendant, as he was having healthy relations with the defendant. The plaintiff has also denied that the defendant asked to the plaintiff to lend an amount of Rs. 5 lakhs to the defendant or that the S.no. 36/2011 Janak Rawal V/s Ashok Pathak 8 Of 18 defendant had given the original documents of the property bearing no. 164/1, Akbarpur, Bahrampur, Ghaziabad, to the plaintiff and also denied that the plaintiff and Shri Harish Arora jointly gave Rs. 4 lakhs to the defendant or that the defendant had signed blank paper or blank cheques or delivered to the plaintiff or that cheques were given for the purpose of security. It is further stated that the version of the defendant cannot be taken to be true, as nobody can mortgage the original documents of the property value of which is more than four times of the amount of the alleged loan and further stated that the defendant has not placed on record any mortgaged deed. He has denied to have received even single penny and stated that the defendant has not placed on record any document to prove any payment to the plaintiff. It is further stated that the defendant is not entitled to get leave to defend, as prayed in the application, as the defendant has failed to raise any triable issue and prayed for the dismissal of the leave to defend and decreetal of the suit.
11.I have heard the ld. counsels for the parties and perused the record.
12.Ld. counsel for the defendant has submitted that the defendant was in need of money, so, he approached to the plaintiff for seeking financial assistance and he had taken to the defendant to his friend Shri Harish Arora and Shri Harish Arora and the plaintiff jointly paid an amount of Rs. 4 lakhs and the defendant had signed on a blank paper and 10 S.no. 36/2011 Janak Rawal V/s Ashok Pathak 9 Of 18 cheques and delivered to the plaintiff and also handed over the original documents of the property of his mother and it was agreed upon that the defendant will pay Rs.33,000/ per month, out of which Rs. 23,000/ were to be paid as part of the principle amount and Rs.10,000/ were to be paid as interest. He has further submitted that he has regularly paid the instalments to the plaintiff/Harish Arora and he has paid an amount of Rs.4,29,000/ till April 2010 and thereafter he had paid Rs. 65,000/ to the plaintiff and he asked to the plaintiff to return all the documents. He has further submitted that all the 10 cheques issued by the defendant were presented by the plaintiff at one time, which shows the malafide intention of the plaintiff and prayed for the grant of leave to defend to the defendant .
13.Whereas, the ld.counsel for the plaintiff has submitted that the defendant has admitted to have taken the loan of Rs. 4 lakhs, whereas, perusal of the original document i.e. The promissory note dated 12.4.2009 placed on record by the plaintiff clearly goes to show that the defendant has taken a friendly loan of Rs.16,02,650/ and he had agreed to pay Rs. 30,250/ every month for 25 months and it was also agreed upon by the defendant to pay the remaining amount with the consent of the parties. He has further submitted that the defendant has not denied to have issued the cheques. He has further submitted that the defendant has S.no. 36/2011 Janak Rawal V/s Ashok Pathak 10 Of 18 admitted to have issued 10 cheques, whereas, the defendant had issued 12 cheques as stated in the plaint of a total amount of Rs. 14,33,250/ in discharge of his liability to make the part payment of the suit amount . He has further submitted that the defendant has concocted a false story of handing over of the documents of the property of his mother to the plaintiff. Whereas, he has never given any document to the plaintiff and he has further submitted that the defendant has taken the friendly loan of Rs. 16,02,650/ and in discharge of his liability he had issued the 12 cheques, out of which 8 cheques were presented for encashment and the same were dishonoured. He has further submitted that the defendant has taken the plea that he has taken the loan of Rs. 4 lakhs only. But, he has failed to explain, as to why he had issued 12 cheques in favour of the plaintiff of an amount of Rs, 14,33,250/ . He has further submitted that the defendant has also taken the false plea that he has returned an amount of Rs. 4,29,000/ till April 2010 and an amount of Rs. 65,000/ thereafter, but, he has failed to place on record even single document to substantiate such contention. He has further submitted that perusal of the original document placed on record by the plaintiff clearly goes to show that the defendant had taken an amount of Rs. 16,02,650/ and the defendant has not denied his signatures on the said document. Nor he has made any explanation about the same. He has further submitted that the S.no. 36/2011 Janak Rawal V/s Ashok Pathak 11 Of 18 defendant has concocted a false story that some documents of the property of his mother were given to the plaintiff, but, till date the defendant has not written any letter asking to the plaintiff to return the said alleged documents and thus, such contention is of no substance, as the defendant has also failed to place on record any such document regarding such alleged handing over of the documents. He has further submitted that the defendant has failed to place on record even single document to show that he has returned even single penny to the plaintiff, whereas, from the documents placed on record by the plaintiff, it is crystal clear that the defendant has taken the amount of Rs.16,02,650/, as friendly loan and in discharge his liability to repay the part payment of the said amount he has issued 12 cheques of Rs. 14,33,250/, but, till date he has failed to pay even single penny. He has further submitted that since the plaintiff is a cancer patient, so at this time, he is in dire need of money and he is not claiming any interest and he has prayed for passing a decree of the suit amount and also prayed for awarding the amount of cost. He has further submitted that the leave to defend has not given any rise to the triable issue and the defence taken by the defendant is moon shine and the leave to defend is liable to be dismissed and the suit of the plaintiff is liable to be decreed.
14.I have given thoughtful considerations to the submissions made by Ld. S.no. 36/2011 Janak Rawal V/s Ashok Pathak 12 Of 18 counsel for the plaintiff and perused the record.
15.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 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 S.no. 36/2011 Janak Rawal V/s Ashok Pathak 13 Of 18 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.
13.The word 'defence' means lawful defence available to the defendant under the law. The defendant may plead any defence i.e. of law or of fact. It is settled principle of law that if the application for leave to defend raises an issue which is triable, leave to defend must be granted. The case of the parties has to be seen in the light of above stated principles.
14.Coming to the case in hand, the plaintiff has filed the present suit for recovery of Rs. 16,02,650/ alongwith interest @ 18% per annum, on the basis of the written promise made by the defendant on dated 12.4.2009,wherein the defendant has admitted to have entered into transaction of Rs. 16,02,650/ and had agreed to pay Rs. 30,250/ every month for 25 months and also agreed to pay the remaining amount S.no. 36/2011 Janak Rawal V/s Ashok Pathak 14 Of 18 with the consent of the parties. Perusal of the written promise dated 12.4.2009, placed on record by the plaintiff shows that a transaction of Rs. 16,02,650/ had taken place between the plaintiff and the defendant and the defendant had promised to pay Rs. 30,250/ on 20th day of every month for 25 months and also agreed to pay the remaining amount with the consent of the parties and the defendant has not controverted his signatures thereon in his leave to defend. He has taken the plea that his signature was obtained on blank paper, but such plea of the defendant does not appear to be probable that the defendant has signed on a blank paper. The defendant has admitted the issuance of the 10 cheques, but, he has not denied issuance of the 12 cheques. Perusal of the 12 cheques placed on record by the plaintiff shows that all the 12 cheques have been issued by the defendant, on different dates. The counsel for the defendant has submitted that those cheques have been issued as security. The defendant has taken the plea that he has taken the amount of Rs. 4 lakhs only, as loan from the plaintiff and Shri Harish Arora, but he has failed to explain as to why he had issued the 12 cheques of total amount of Rs. 14,33,250/ i.e. more than the amount of Rs. 4 lakhs, if he has taken the loan of Rs. 4 lakhs only . He has also failed to place on record any document showing that he has taken an amount of Rs. 4 lakhs jointly from the plaintiff and Shri Harish Arora, whereas, the plaintiff has placed S.no. 36/2011 Janak Rawal V/s Ashok Pathak 15 Of 18 on record the written promise dated 12.4.2009, which is signed by the defendant, vide which he had taken the amount of Rs. 16,02,650/ and promised to return the same and in the absence of any documentary proof, contrary to the said written document, such contentions of the defendant is of no substance. The defendant has also taken the plea that he had taken the loan of Rs. 4 lakhs and handed over the documents of the property of his mother to the plaintiff. The plaintiff has denied the same. The defendant has failed to place on record any documentary proof in order to substantiate such contention nor the defendant has written any letter or notice for return of these documents, to the plaintiff and in the absence thereof, such contention of the defendant is also of no substance. The defendant has also taken the plea that he has returned an amount of Rs. 4,29,000/ till April 2010 and thereafter an amount of Rs. 65,000/ was also paid to plaintiff, but, he has failed to place on record even single document to show the payment of any amount to the plaintiff and in the absence of any documentary proof , such contention of the defendant is also of no substance.
15.The perusal of the original document dated 12.4.2009 placed on record by the plaintiff clearly goes to show that a transaction of Rs. 16,02,650/ had taken place between the plaintiff and the defendant and the defendant had promised to pay Rs. 30,250/ on 20th day of every month for 25 S.no. 36/2011 Janak Rawal V/s Ashok Pathak 16 Of 18 months and also agreed to pay the remaining amount with the consent of the parties and signature on this document has not been denied by the defendant in his leave to defend nor at the time of argument, the ld.,counsel for the defendant has controverted the signature of the defendant on this document. The plea of the defendant that his signature on the blank paper was obtained is not believable. Similarly, the plea that he has given blank cheques after signing the same as security also does not inspire any confidence. The defendant has not denied his signature on the written promissory note dated 12.4.2009, which has been placed on the record. He has also not denied his signature on the 12 cheques of Rs. 14,33,250/.
16.Cumulative effect of the above discussion is that this court has come to the conclusion that the defence set up by the defendant is illusory and sham, as the leave to defend has not raised any triable issue. So, I do not find any force in the submissions made by the counsel for the defendant, so taking into the consideration the facts and circumstances in their entirety, and in view of the law laid down by the hon'ble Apex court in the above said judgment, I am inclined to hold that the leave to defend filed by the defendant is devoid of merit, so the same is hereby dismissed. Since from the perusal of the written promise dated 12.4.2009, it is clear that the defendant had agreed to repay the said S.no. 36/2011 Janak Rawal V/s Ashok Pathak 17 Of 18 amount, but, he failed to return the said amount. Accordingly, the suit of the plaintiff for an amount of Rs. 16,02,650/ is hereby decreed with cost of the suit. Decree sheet be prepared accordingly. The decree shall be executed only on filing of the deficient court fee, if any. File be consigned to record room.
Announced in the open
Court on : 31.7.2012 (Pawan Kumar Matto)
Additional District Judge03
(East), Karkardooma Court,Delhi
Delhi .
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