Delhi District Court
Shyam Nandan Jha vs Mr. Bateshwar Jha on 23 March, 2023
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE -01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
C.S. No.: 334/19
CNR No. DLET01-004695-2019
In the matter of
Shyam Nandan Jha
G-77, KKD Courts, Delhi-32
R/o H.No.A-5, Top Floor, Chander Nagar
Ghaziabad (UP)
Mob.:-9711114697
.......Plaintiff
Versus
Mr. Bateshwar Jha
A-48 A, Second Floor, Chander Vihar,
Mandawali, Delhi-110092,
Also at;
Mr. Bateshwar Jha
C/o Sh. Satish Jha,
H.No. 360 H, Daya Singh Wali Gali,
Daulatpura, Bhatia More, Ghaziabad,
PIN 201001
Also at;
Mr. Bateshwar Jha @ Laltesh
S/o Late Dukhmochan Jha @ Dukhan Jha
C/o Sh. Shankar Jha, Vill. Karama,
PO. Bhagipur, P.S. Puraini,
Distt. Madhepura (Bihar)
PIN 852219
Presently;
Mr. Bateshwar Jha
C/o Narayan Dass, 130, Govindpur,
PS Rohania, Varanasi (UP)
.......Defendant
CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 1 of 8
Date of Institution : 23.05.2019
Reserved for Order on: 23.03.2023
Order announced on : 23.03.2023
ORDER:
1. This is a suit for recovery of Rs.8,00,000/- with interest filed under Order XXXVII of CPC by the plaintiff against the defendant. Brief facts of the case are as under:
2. The defendant is a distant relative of plaintiff having cordial relations. In the last week of October, 2014, the defendant approached the plaintiff for financial assistance for marriage of his daughter. At his request, the plaintiff advanced a friendly loan of Rs.30 lakhs to the defendant between October, 2014 to November, 2014. Thereafter, on demand of return of loan, the defendant issued two post dated cheques bearing No. 086747 dated 15.03.2017 of Rs.6 lakhs drawn on Oriental Bank of Commerce, IP Extension, Patparganj and cheque bearing No.012415 dated 20.03.2017 of Rs.2 lakhs, drawn on State Bank of India, Ring Road, Lajpat Nagar in partial discharge of his liability. These cheques, upon presentation, got dishonoured vide returning memo dated 24.07.2017. Thereafter, the plaintiff sent legal notice dated 22.05.2017 to the defendant through his counsel which was duly served upon the defendant. The plaintiff also filed complaint case bearing No. 2326/17 and 2327/17 under Section 138 NI Act qua the aforesaid cheques which are pending adjudication. When defendant failed to pay the loan amount qua the cheques in question, the plaintiff was constrained to file the present suit under XXXVII of CPC. Hence, this suit.
CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 2 of 83. Summons for appearance was issued to the defendant upon which he filed his appearance. Thereafter, pursuant to issuance of summons for judgment, the defendant has sought leave to defend the suit on the following grounds:-
(i) The defendant had never taken any friendly loan of Rs.30 lakhs from the plaintiff and thus, he is under no liability towards the plaintiff. The cheques in question were issued in blank towards security to the plaintiff for the purpose of chit fund/committee operated by the plaintiff.
(ii) The plaintiff failed to produce any documentary proof i.e. bank statement, ITR, receipt or any witness till date regarding said friendly loan.
4. On the basis of above grounds, ld. Counsel for applicant/defendant submits that since the defendant has raised a triable issue, he is entitled for grant of unconditional leave to defend the instant suit. He further submits that since plaintiff has not disclosed the advancement of loan to the Income Tax Department, he cannot seek its recovery. In support, he relied upon case titled as "G. Pankajakshi Amma & Ors. Vs. Mathai Mathew (Dead) Through LRs & Anr.", V (2005) SLT 599 wherein it is so held:-
"10....According to the 1st respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transactions. No Court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transactions, the Court could not have lent its hand and passed a decree. For these reasons also the suit was required to be dismissed".CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 3 of 8
Per contra in reply, the plaintiff submitted that the defendant has not raised any triable issue which need to be proved by leading evidence and thus, the same is liable to be dismissed. In support, he relied upon the following authorities:-
i. IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd. 2017 (1) SCC 568.
ii. Raj Narain Vs. HBN Housing Finance Ltd., RFA 341/2012, decided by Hon'ble Delhi High Court on 25.09.2013.
iii. Sasumorov Enterprises Pvt. Ltd. Vs. Odeon Builders Pvt.
Ltd. 2018 SCC OnLine Del 12509.
iv. Versatile Commotrade Private Limited Vs. Balraj 2019 SCC OnLine Del 6558.
v. Sameer Bhutani Vs. Kewal Krishan Kumar, CS(OS) 462/2018, IA No.16387, decided by Hon'ble Delhi High Court on 24.01.2019.
Further, to counter the contention regarding non- disclosure of factum of advancement of loan to Income Tax Department, Ld. Counsel for plaintiff relied upon case titled as "Renu Aggarwal & Anr. Vs. Baldev Raj Sachdeva", RFA 474/2017, decided by Hon'ble Delhi High Court on 16.10.2018, wherein it is so held:-
"(h)....the lapse if any by a claimant before the Court in filing of income tax returns cannot be a reason for denying the claim, as that is a concern of the Income Tax Authorities. The appellants/defendants/judgment debtors in the present case also are free to complain of the illegal transactions if any of the respondent/plaintiff/ decree holder, to the concerned authorities but cannot wish away their liability to the respondent/plaintiff/decree holder as evident from the writing bearing admitted signatures and from the issuance of cheques"CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 4 of 8
(j) Though the appellants/defendants/judgment debtors in the applications for leave to defend pleaded that they demanded the cheques given as security for chit installments after paying all the chit installments and the respondent/plaintiff/decree holder did not return the cheques, but again neither any dates thereof have been given nor is it the plea of the appellants/defendants/ judgment debtors that the appellants/defendants/judgment debtors on such refusal of the respondent/plaintiff/decree holder, took any steps whatsoever of stopping payment of the said cheques or issuing notice to the respondent/plaintiff/decree holder demanding return of the cheques or of making any complaint against the respondent/plaintiff/decree holder. Such plea has been taken only when faced with the monetary demand due thereunder and which action belies any faith therein."
5. Submissions heard. Considered.
6. Vide deciding the application for grant of leave to defend, the following principles are to be observed as held in Milkhiram (India) (P) Ltd. V. Chamanlal Bros. AIR 1965 SC 1698 in para no.18:
(a) If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;
(b). If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend;
(c) even if the defendant raises triable issues, if a doubt is left with the trial judge about the Defendant's good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 5 of 8 deposit or security;
(d) if the defendant raises a defence which is plausible but improbable, the trial judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
(e) if the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith;
(f) if any part of the amount claimed by the plaintiff is admitted by the Defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.
7. Again in case titled as "Mrs. Raj Duggal Vs. Rames Kumar Bansal MANU/SC/0393/1990" : AIR 1990 SC 2218, the Hon'ble Supreme Court of India reiterated the following principle while granting or refusing leave to defend a suit under Order 37 CPC:-
"Leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defenses. The test is to see whether the defense raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defense on those facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 6 of 8 bonafide defense, he ought to have leave. Summary judgments under Order 37 CPC should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The Court should not reject the defense of the defendant merely because of its inherent implausibility or its inconsistency."
8. Coming to the facts of the present case, the relation between plaintiff and defendant and the cheques in question are not in dispute. The sole defence raised is that cheques in question were issued in blank as a security for chit fund/committee. However, no documentary evidence regarding chit fund/committee has been filed by the defendant along with the application to show that the cheques in question were issued for security purpose. Further, no remedial steps were taken by the defendant upon misuse of the security cheques by the plaintiff. Even otherwise, this defence is contradictory to the defence taken by the defendant in criminal case bearing CT Cases No.2326/17 & 2327/17 wherein he suggested to the plaintiff in his cross-examination (copy of cross-examination placed on record by defendant himself) that cheques in question were issued towards insurance policy. Thus, defence raised by the defendant is moonshine and an afterthought. Further, the suit is based on Negotiable Instruments Act which falls under Order XXXVII of CPC. The dishonour of the cheques upon presentation is also not in dispute.
9. In these circumstances applying the principles laid down in Milkhiram (India) (P) Ltd. (Supra), Mrs. Raj Duggal (Supra) and Renu Aggarwal & Anr. (Supra), this court is of the considered view that the defendant has failed to raise any triable CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 7 of 8 issue. Accordingly, I do not find any reason to grant leave to defend the suit. Hence, the application seeking leave to defend stands dismissed.
10. Consequently, the plaintiff is entitled to judgment forthwith under the provisions of Order 37 Rule 3 (6) (a) of CPC. Therefore, the suit of the plaintiff is decreed for a sum of Rs.8,00,000/- with interest @ 8% per annum from the date of filing of the suit till the date of decree. Cost of the suit is also awarded to the plaintiff.
Decree sheet be prepared accordingly after payment of deficient court fee, if any.
File be consigned to record room after due compliance.
Pronounced in the open Court (AJAY GARG) on 23.03.2023. Additional District Judge-01 (East), KKD Courts, Delhi.
CS No. 334/19 Shyam Nandan Jha Vs. Bateshwar Jha Page 8 of 8