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Cs No. 1622/18 vs Sh. Tej Prakash Navaria on 24 February, 2020

     In the Court of Additional Senior Civil Judge­cum­Judge Small
     Causes Court­cum­Guardian Judge, North­West District, Rohini
                              Courts, Delhi
                  Presided by : Ms. Susheel Bala Dagar


CS No. 1622/18
Sh. Dharmender Kumar Gupta
S/o Sh. Khachermal Gupta,
R/o B­135, Balbir Vihar,
Kirari Suleman Nagar,
New Delhi­110086.
                                                                              ......Plaintiff
                                            Versus
Sh. Tej Prakash Navaria
S/o Sh. Mohan Lal,
R/o B­4/178, Sector­20,
Rohini, Delhi­110041.                                                         ......Defendant


Date of Institution                                          :                26.10.2018
Date on which judgment was reserved                          :                04.02.2020
Date of pronouncing judgment                                 :                24.02.2020


        SUIT FOR RECOVERY OF Rs. 3,00,000/­ ALONGWITH
               PENDENLITE & FUTURE INTEREST

JUDGMENT

Brief facts of the present case are as under :

1. On 08.09.2016, the defendant approached the plaintiff at his house at Balbir Vihar, Delhi for a loan of Rs.3,00,000/­ as the defendant was in dire need of the same. Seeing the need of the plaintiff, the plaintiff had CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 1/8 arranged the sum of Rs.3,00,000/­ from his bank account and from his home and handed over the same to the defendant and the defendant had promised that he would repay the said loan amount to the plaintiff within 3 months. Thereafter, the plaintiff approached and requested the defendant to return back the loan amount but the defendant miserably failed to repay the above said loan amount and on the insistence of plaintiff, the defendant issued a cheque bearing No. 191722 dated 27.02.2017 for Rs.3,00,000/­ drawn on SBI, Shakurpur, Delhi in consideration and discharge of his liability in favour of the plaintiff and assured him that the abovesaid cheque will be honoured. The plaintiff presented the above mentioned cheque with his banker during its validity for encashment but on presentation, the above mentioned cheque got dishonoured vide return memo dated 29.03.2017 with the remarks 'contact drawer/drawee bank'. Plaintiff immediately contacted the defendant but he did not respond to the call of the plaintiff. Thereafter, the plaintiff sent a legal notice to the defendant on 23.05.2017 thereby making a demand for payment of the abovesaid loan amount of Rs. 3 lakh within 15 days of receipt of the said legal notice. The said notice was duly served upon the defendant but he miserably failed either to reply the said legal notice or to make the payment of the above said loan amount to the plaintiff. Hence the present suit has been filed with the prayer for passing a decree for a sum of Rs.3,00,000/­ against the defendant along with future and pendente lite interest.

2. On being served with the summons, the defendant put his appearance under Order 37 Rule 3 CPC in the Court on 04.02.2019.

Thereafter, the defendant was served with summons for judgment for 10.07.2019 and he moved an application seeking leave to defend under Order 37 Rule 3 (4) CPC whereby he pleaded that the suit of the plaintiff is not maintainable under Order 37 CPC as the plaintiff has filed the present suit on the basis of false and frivolous documents despite the fact that the defendant had never taken any alleged loan from the plaintiff at any point of time and that the defendant is not liable to pay the alleged amount to the plaintiff. He further stated that in the year 2015, the defendant had taken a sum of Rs.50,000/­ from the plaintiff and at the time of giving the loan, the plaintiff took 5 blank signed cheques from the defendant for the purpose of security and further assured the defendant that as and when the defendant returned the above said amount, then he will hand over the above said cheques to the defendant. The plaintiff stated to the defendant that if he wants to get back his cheques, then defendant has to pay sum of Rs.1,00,000/­ more. When the defendant refused the same, the plaintiff started extending threats to misuse the above said cheques and extort money from him. The defendant had not taken any alleged loan/amount from the plaintiff at any point of time. The plaintiff has taken security cheques from the defendant and filed the present case against the defendant. Moreover the defendant had never taken any friendly loan from the plaintiff at any point of time.

3. In reply to the application seeking leave to defend, the plaintiff has stated that the leave to defend application has not been filed by the defendant within stipulated period of 10 days. The present suit has been filed by the plaintiff on the basis of documents provided by the defendant CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 3/8 at the time of taking the said loan from the plaintiff. The plaintiff has denied that in the year 2015, the defendant had taken a sum of Rs.50,000/­ from the plaintiff and at the time of giving the loan, the plaintiff took five blank signed cheques from the defendant for the purpose of security and further assured the defendant that as and when the defendant returned the above said amount, then he will hand over the above said cheque to the defendant. The plaintiff has reiterated the contents of his plaint in the reply and has stated that the defendant has not raised any triable issue as he has no defence. The plaintiff has prayed that the application of the defendant seeking leave to defend be dismissed with heavy costs.

4. Despite time being granted, both parties failed to address oral arguments. Hence, opportunity was granted to both the parties to file written synopsis of their arguments. Plaintiff has filed written synopsis on 22.02.2020 and the defendant filed written synopsis on 14.02.2020 (However, on the written synopsis of defendant, it is mentioned as written statement). Case file perused.

5. The law with regard to granting of leave to defend is well settled as held in Mechelec Engineers Vs. M/s Basic Equipment Corporation 1977 AIR 577, 1977 SCR (1) 1060 by Hon'ble Supreme Court that Court can grant leave to defend the petition when the defendant raises triable issues. If the defendant shows that on a fair probability he has a bonafide defence, he ought to have leave. The following principles apply for leave to defend u/o XXXVII CPC:­ (A) If the defendant satisfy the Court that he has a good defence to the CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 4/8 claim on its merits the plaintiffs is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (B) If the defendant raise 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 has a defence, yet shows such a state of facts as leads to the inference that at the trials 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 of 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 of the defence is illusory of sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign the 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 given leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence.

6. In the present case, the plaintiff has filed the copy of his passbook to show that he has withdrawn Rs.2,59,000/­ from his bank account on 08.09.2016 and handed over Rs. 3 lakh to the defendant. The plaintiff has also placed on record the copy of PAN card of the defendant which was provided to the plaintiff at the time of taking the said loan amount. The plaintiff has also placed on record the original cheque No. 191722 dated 27.02.2017 for Rs. 3,00,000/­ drawn on SBI, Shakurpur, Delhi and the cheque return memo. Further, plaintiff has also relied upon the copy of the notice dated 22.05.2017 posted on 15.06.2017 along with the returned speed post envelop. All the above documents duly support the version of the plaintiff. In Oriental Insurance Co. Ltd. v. Meenakshi Khosla 2012 (130) DRJ 319, it has been held that if the legal notice was duly sent on the correct address of the defendant, the same is deemed to be duly served.

7. On the other hand, the defendant has not filed any document to show that he has made payment towards the loan. The defendant has admitted that he has handed over five blank signed cheques to the plaintiff as security. The defendant has also admitted that the cheque in question was given by him to the plaintiff. As the defendant himself has admitted handing over the cheque in question to the plaintiff, it is presumed that the said cheque was given against liability. The dishonor of the cheque is not disputed by the defendant. Regarding his liability defendant has only stated that he gave a security cheque to the plaintiff.

8. In the judgment titled as "Jammu and Kashmir Bank Vs. Abhishek Mittal", CRL A. No. 294/2011 decided on 26.05.2011, the Hon'ble High Court has held that ;

"Para 6:­ ... The plea taken by the respondent that the blank cheques had been given by him is of no consequence.

Respondent has admitted his signature on the cheques. There CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 6/8 is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him..."

In such circumstances, it is presumed that the said cheque was issued for discharge of the liability towards the person to whom the cheque was issued.

9. Therefore, in view of the judgment mentioned above, the contention of the defendant that he gave security cheques to the plaintiff towards loan of Rs. 50,000/­ from the plaintiff, is not found to be tenable. The defendant has not produced any documents to show that he has made payment of loan amount. The defendant has also failed to produce any document to show that the loan amount was only Rs. 50,000/­ as alleged by the defendant.

10. In view of the discussions above, it is found that the defendant has no defence and the defence set up by defendant in his application for leave to defend is illusory and sham and practically moonshine, therefore, the defendant is not entitled to leave to defend. Accordingly, the plaintiff is entitled to judgment forthwith.

11. The suit is within the period of limitation as well as within the pecuniary jurisdiction of this Court.

12. Considering the present facts and circumstances, the Court deem it appropriate to grant the interest @ 8% per annum from the date of institution of the suit till the realization of decreetal amount. Accordingly, the suit of the CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 7/8 plaintiff is decreed for the sum of Rs. 3,00,000/­ along with interest @ 8% per annum from the date of filing of the suit till realization of the decreetal amount. The plaintiff is also entitled to costs. Decree sheet be prepared after deposition of appropriate Court fees.

File be consigned to Record Room.

          Announced in open Court             (Susheel Bala Dagar)
               th

on 24 Day of December 2020 Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, North­West District, Rohini, Delhi (This judgment contains 8 pages.) CS No. 1622/18 Sh. Dharmender Kumar Gupta Vs. Sh. Tej Prakash Navaria Page No. 8/8