Delhi District Court
Cs No. 701/14 vs Kundan Lal Lamba on 14 October, 2015
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
CS No. 701/14
Gulvinder Kumar Anand
S/o. Late Sh. J.R. Anand
R/o Q556, Top Floor,
Rishi Nagar, Rani Bagh,
Shakur Basti,
Delhi110034. .............Plaintiff
Versus
Kundan Lal Lamba
S/o B.L Lamba
R/o 110, Shakti Vihar,
Delhi110034. ...........Defendant
Date of Institution of the case : 19.07.2014
Date of hearing the arguments : 17.09.2015
Date of decision decision : 14.10.2015
J U D G M E N T
1. By this order, I shall decide one leave to defend application.
2. The facts of the case filed in brief are as under that plaintiff CS No. 701/14 Page No. 1/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba and defendant have friendly relations. On 15.07.2011 defendant asked for a friendly loan of Rs. 12 lacs for period of about 12 months and plaintiff gave a friendly loan of Rs. 11,90,000/ in four installments i.e. Rs. 3,70,000/ on 20.07.2011, Rs. 70,000/ on 22.07.2011, Rs. 4 lacs on 15.10.2011 and Rs. 3,50,000/ on 17.10.2011. Defendant also executed separate promissory note and receipt. On three promissory notes defendant also gave his thump impression as acknowledgment of receipt of payment and promised to pay friendly loan within time. On 26.12.2012, defendant handed over two cheques of Rs. 2 lacs each which were dishonored on presentation. Plaintiff has also given a legal notice dated 15.01.2015, however, no payment made.
3. Defendant in his leave to defend application has stated that he has not taken any loan nor has executed any promissory note. Signatures on the promissory notes are false and fabricated. Defendant has denied the issuance of cheque of Rs. 2 lacs each. Defendant has denied that he alongwith his wife has ever approached the plaintiff for a friendly of Rs. 12 lacs. Defendant was never in financial difficulties on 15.07.2011 or at any point of time. With regard to the cheque of Rs. 2 lacs each, it is stated that plaintiff was having friendly relations with defendant and he used to visit his factory CS No. 701/14 Page No. 2/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba premises and in his absence both these cheques have been stolen by him. It is stated that defendant came to know about the missing of cheques when a criminal case under section 138 NI Act was filed against him.
4. In his reply, plaintiff has stated that the ground taken by the defendant are vague and not tenable as he has filed to raise any substantial defence in the present case. Defendant has not lodged any FIR till date against the alleged theft of the cheques in question. It is stated that defendant has signed the different signatures on the cheques and cheated the plaintiff. It is prayed that leave to defend be dismissed.
5. Arguments are heard at length. Record is also perused thoroughly.
6. From the arguments of the parties and after perusal of record it is reflected that the loan transaction and issuance of cheque has been denied by the defendant. Defendant, however, has not made any complaint till date against the plaintiff despite the fact that a criminal complaint case under section 138 NI Act has been filed CS No. 701/14 Page No. 3/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba against him which attracts the provision of imprisonment up to 2 years. It is also reflected from the perusal of record that there is no reply to the legal notice given by the plaintiff. It is reflected that legal notice given by the plaintiff has been sent on a address which pertains to defendant against which there is no denial. Postal receipts is also placed on record. Hence, the presumption of section 27, General Clauses Act applies here that it has been delivered in due course of time to the addressee. Nothing contrary to this presumption has been placed on record by the defendant. Defendant has also not disputed the friendly relations in between the parties. From the careful perusal of the record it is reflected that defendant has stated that his financial position as on 15.07.2011 and thereafter was not worse, however, he has not placed on record any document, like bank statement, in support of his contention to show prima facie that he was having a good financial position on or before 15.07.2011. Only one document i.e. ITR for the year 20102011 and 20112012 is filed which reflects the status of defendant that he has the gross income of Rs. 1,70,000/ which constitutes the income of Rs. 1,26,000/ from house property and income of Rs. 44,000/ from business and profession. In the absence of any other documents, after considering the ITRs filed by the defendant his financial situation cannot be considered to be very CS No. 701/14 Page No. 4/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba good in the absence of any other information. In these circumstances, I am of the considered opinion that the denial made by the defendant appears to be shame and bogus and it is nothing but an evasive denial.
7. Plaintiff, on the other hand, has placed on record the relevant documents i.e. four promissory notes in original containing the signatures and thump impression of the defendant. Plaintiff has also filed the photocopies of cheques for which he has filed a case under section 138 NI Act.
Counsel for defendant has relief upon certain judgments which are tilted as under:
1) S.V. Construction Company Vs. Parshuram Bhardwaj, 2013 Legal Eagle (Del) 2015.
In this case one of the defence taken by the defendant was regarding signatures being forged, hence, title of the property was disputed. In the present case, the dispute is pertaining to friendly loan only. Hence, this case being peculiar in nature is not applicable.
(2) Rana Inderjeet Singh Vs. Kembiotic Laboratories & Ors, 2008 Legal Eagle (Del) 878.
(3) Hari Niwas Gupta Vs. Om Propmart (P) Ltd. & Ors, 2012 CS No. 701/14 Page No. 5/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba Legal Eagle (Del) 295.
(4) S.C. Rastogi Vs. Renu Kalra, 2006 Legal Eagle (Del) 45. (5) Delhi Travel & Tours Vs. Motorola India Ltd, 2000 Legal Eagle (Del) 215.
(6) Sarmon Pet Ltd. Vs. Chemi Nova Industries Pvt. Ltd., 2002 Legal Eagle (Del) 236.
(7) Sai Engineers Vs. IMCC Ad, 2005 Legal Eagle (Del) 880.
The facts circumstances of the present case are peculiar in nature hence, the above mentioned judgments does not apply in present case.
Reference can be laid on one judgment titled as Mechelec Engineers & Manufacturers Vs. Basic equipment Corpn. AIR 1977 SC 577, which has laid down five guiding principles which are to be considered while deciding the leave to defend application which are discussed here as under:
"(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.
CS No. 701/14 Page No. 6/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba
(b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence, although not a possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at the time of granting leave to defendthe conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.
(d) If the defendant has not defence or if the defence is sham or illusory or practically moonshine, 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, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into court or otherwise secured."
The case of plaintiff and the ground taken by the defendant CS No. 701/14 Page No. 7/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba in his leave to defend application appears to be covered under clause D. The defence taken by the defendant in his leave to defend application is nothing but a mere evasive denial, hence, it is nothing but a shame and bogus defence. In these circumstance, the leave to defend application filed by the defendant is dismissed. Announced & dictated in the (Prashant Kumar) open court today i.e. on 14.10.2015 ADJ04(NW)/Rohini Courts Delhi/14.10.2015 CS No. 701/14 Page No. 8/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba CS No. 701/14 14.10.2015 Present: None.
Arguments on leave to defend application have already been heard.
Vide my separate order announced and dictated in the open court today, leave to defend application filed by the defendant is dismissed. Plaintiff is, therefore, entitled for the decree. Hence, the plaintiff is entitled for recovery of Rs. 11,90,000/ alongwith interest (simple interest) @ 12% per annum from the date of filing of the suit till its realization alongwith cost of the suit. Decree sheet be prepared.
Case file be consigned to record room after completion of all necessary formality.
(Prashant Kumar) ADJ04(NW)/Rohini Courts Delhi/14.10.2015 CS No. 701/14 Page No. 9/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba IN THE COURT OF SH. PRASHANT KUMAR, ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
DECREE SHEET IN SUIT FOR RECOVERY U/o 37 CPC CS No. 701/14 Gulvinder Kumar Anand S/o. Late Sh. J.R. Anand R/o Q556, Top Floor, Rishi Nagar, Rani Bagh, Shakur Basti, Delhi110034. .............plaintiff Versus Kundan Lal Lamba S/o B.L Lamba R/o 110, Shakti Vihar, Delhi110034. ..........defendant Claim for : Suit for Recovery of Rs. 11,90,000/ Plaint presented on 19/07/2014 This suit coming on this 14/10/2015 for final disposal before me in the presence of plaintiff & defendant.
The plaintiff is entitled to recovery of Rs. 11,90,000/ alongwith simple interest @ 12% per annum from the date of filling of the suit till its realization. Cost of the suit is also awarded. COST OF SUIT PLAINTIFF DEFENDANT S.No Particulars Amt (Rs.) S.No Particulars Amt.
1 Stamp for plaint Rs.14,050/ 1 Stamp for plaint Nil
2 Stamp for power Nil 2 Stamp for power Nil
3 Process Fee Rs. 5/ 3 Process Fee Nil
4 Miscellaneous Rs. 7/ 4 Miscellaneous Nil
TOTAL Rs. TOTAL Nil
14,062/
Given under my hand and the seal of this Court on this 14/10/2015.
SEAL (PRASHANT KUMAR) ADJ4 (N/W) Rohini Courts CS No. 701/14 Page No. 10/8 Gulvinder Kumar Anand Versus Kundan Lal Lamba