Delhi High Court
Aashrit Exports vs Tulsi Dass Sharma on 27 April, 2001
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. The plaintiff has filed this Suit under the provisions of Order xxxvII of the Code of Civil Procedure for recovery of Rs.10,75,000/- (Rupees Ten lakhs seventy five thousand only). The Suit is based on dishonoured cheque bearing No. 247028 dated 10th June, 1999 for Rs. 10,00,000/- drawn on Union Bank of India, Sadar Bazar, Delhi - 110006. It is averred in the plaint that the plaintiff supplied 3200 pieces of Terminator-II T.V. Games for the value of Rs. 12,62,368/- vide bill/delivery challan dated 18th May, 1999. The defendant had given two cheques to liquidate the liability against the aforesaid supply. One cheque bearing no. 285741 dated 18th May, 1999 for Rs.2,60,000/- and the other bearing No. 247028 dated 10th June, 1999 for Rs.10,00,000/-. On presentation cheque dated 18th May, 1999 for Rs. 2,60,000/- was returned back dishonoured with the remarks "Drawer's Signature differs". Cheque dated 10th June, 1999 for Rs.10,00,000/- was returned dishonoured with the remarks "Payment stopped by the drawer" and "Insufficient funds". The plaintiff made a complaint to D.C.P., Crime Branch, Police Head Quarters, New Delhi and also sent legal notice dated 12th June, 1999 under Section 138 of the Negotiable Instruments Act. Before the D.C.P. the defendant paid a sum of Rs.2,60,000/-. Since it is also alleged in the plaint that although the defendant had assured that he will make the balance payment of Rs.10,00,000/- also, as no payment was made the plaintiff initiated proceedings against Section 138 of the Negotiable Instruments Act and also filed the present Suit under the provisions of Order xxxvII of the Code of Civil Procedure.
2. The defendant has filed the present IA under Order xxxvII Rule 3(5) of the Code of Civil Procedure seeking leave to defend the Suit. The main plea taken in this application is that no such payment of Rs. 10,00,000/- is due to the plaintiff inasmuch goods worth Rs.10,02,368/- were returned back to the plaintiff as the same were not in working condition and were inferior in quality. Having good business relations with the plaintiff, the defendant did not press for receipt for the returned goods. It is also stated that cheque bearing no. 247028 dated 10th June, 1999 for Rs.10,00,000/- was never handed over to the plaintiff. In fact this cheque has been stolen/misplaced and the defendant had made a complaint to this effect to his banker on 28th May, 1999 itself. The cheque in question which bears the date of 10th June, 1999 therefore could not have been given by the defendant to the plaintiff in view of the aforesaid complaint made to the banker much before i.e. 28th May, 1999 itself.
3. The plaintiff has filed the reply disputing the aforesaid averments made in the application for leave to defend. It is stated that the plaintiff had supplied goods for Rs.12,62,368/- and was in fact given two cheques for Rs. 10,00,000/- bearing no. 247028 dated 10th June, 1999 and for Rs. 2,60,000/- bearing no. 285741 dated 18th May, 1999. It is further stated that it appears to be a pre-planned move of the defendant to lodge the report with the bank of having lost the cheque on 28th May, 1999 and than hand over the cheque dated 10th June, 1999 to the plaintiff. It is further submitted that receipt of the goods is not disputed by the defendant and the bogey is now being raised to the effect that goods worth Rs.10,02,368/- were defective and therefore returning to the plaintiff. Such a plea, according to the plaintiff, is not possible inasmuch as while returning the goods of substantial amount, the defendant would have insisted and taken a receipt. This shows the defense raised by the defendant in this application is sham. It is also submitted that in the complaint before the D.C.P. the plaintiff had mentioned about the two cheques but in the proceedings before the D.C.P. the defendant did not at all stated that the cheque of Rs. 10,00,000/- was not given to the plaintiff or that had been misplaced or stolen.
4. I have considered the submission of both the parties and have perused the pleadings and the documents. It is admitted by the defendant also that goods worth Rs. 12,62,368/- were supplied by the plaintiff to the defendant. It is also an admitted case that the defendant has no receipt or document to show that the goods worth Rs. 10,02,368/- were defective and/or returned to the plaintiff. Further, such a plea of having the cheque been lost and that no such cheque was given to the plaint if was not taken either before the D.C.P. or when notice dated 12th June, 1999 was sent by the plaintiff to be defendant or when notice dated 3rd August, 1999 was again sent by the plaintiff to the defendant demanding the Suit amount although in this notice the plaintiff had specifically mentioned the aforesaid cheque of Rs.10,00,000/- In fact the defendant did not choose to reply this notice or take the plea that the cheque was not handed over to the plaintiff.
5. In view of the circumstances mentioned above, although the defendant may be given the leave to defend the Suit so that he is given an opportunity to establish, if he can, goods supplied by the plaintiff were defective or he returned the goods or the cheque in question had been stolen/misplaced, as the defense does not appear to be bonafide, it would be appropriate to grant conditional leave to defend. In fact the case is covered by principle 'c' of the five principles laid down by the Supreme Court in the case of Mechalec Engineers and Manufacturers versus M/s. Basic Equipment Corporation reported in AIR 1977 SC 77 which reads as follows:-
"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 defense, 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 defense to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is 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 more of trial but not as to payment into Court or furnishing security."
6. The defendant is granted leave to contest the Suit subject to the condition that the defendant shall deposit a sum of Rs. 5 lakhs in this Court and furnish security to the satisfaction of the Registrar for a sum of Rs. 5 lakhs within a period of four weeks from today.
S.No. 2595/997. The defendant, after complying with the conditions on leave to defend is granted, shall file written statement within six weeks. Replication be filed within six seeks thereafter. Documents be filed by the parties within twelve weeks from today.
8. List before the Joint Registrar for admission and denial of documents on 20th September, 2001.
9. List before the Court for framing of issues on 19th October, 2001.