Delhi District Court
Shri Harish Karra vs Shri Sunil Gupta on 3 August, 2013
ID No.02401C0480842012
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
Suit No.378/2012
Shri Harish Karra .........Plaintiff
versus
Shri Sunil Gupta ........Defendant
O R D E R
1. By this order, I shall dispose of the application under Order 37 Rule 3 (5) of Code of Civil Procedure, 1908 (CPC) moved by the defendant for leave to defend.
2. Brief facts relevant for disposal of the application are that the plaintiff filed the suit for recovery of Rs.7,50,000/ along with pendent elite and future interest @ 18 % p.a. under Order 37 of the CPC against the defendant. In the said suit, it is stated that the plaintiff is the Karta of Harish Karra & family (HUF). The defendant is the proprietor of M/s. Shyam Textiles Implex (the firm). The parties are known to each other for long time. The defendant approached the plaintiff and requested to grant friendly loan. The plaintiff agreed to the same and granted a friendly loan of Rs.7,50,000/ to the defendant vide cheque no.000001 drawn on Kotak Mahindra Bank. The said cheque was issued in the name of the firm and got encashed in the defendant's account on 24.06.2010. The said loan was 1/6 Sh. Harish Karra Vs. Sh. Sunil Gupta repayable after March, 2011. To discharge his liability, the defendant issued a cheque no. 765193 dated 01.04.2011 for Rs.7,50,000/ drawn on State Bank of India (herein referred to as the said cheque). The plaintiff presented the said cheque for encashment, however, the same got dishonoured for the reason 'insufficient fund' on 15.04.2011. Once the plaintiff informed the defendant about dishonour of the cheque, he asked him to wait for two months. After two months, the plaintiff again presented the said cheque for encashment and that time also, the said cheque was dishonoured for the reason 'insufficient fund' on 27.07.2011. Left with no option, the plaintiff got issued the legal notice dated 05.08.2011. However, despite receipt of the said notice, the defendant failed to pay the amount. Instead, the defendant sent a reply dated 24.08.2011 making false averments therein. Hence, the present suit.
3. In response to the summon for judgment, the defendants filed the application for leave to defend. In the application, the defendant denied that he has taken any loan from the plaintiff. It is stated that plaintiff's family is dealing in yawn and the defendant was a commission agent for the firm of plaintiff's brother. As such, the defendant had the business relationship with brother of the plaintiff and gave the said cheque to him as security. Once the defendant asked the plaintiff's brother to repay the balance commission and some 'F' Form, then the plaintiff's brother misused the said cheque and filed the present suit through his brother to harass him. It is also stated that no loan document is executed between the parties which itself shows that no loan transaction had taken place between the parties. Hence, the present application.
2/6 Sh. Harish Karra Vs. Sh. Sunil Gupta
4. The plaintiff contested the application and filed the reply to the same. The plaintiff denied each and every averment made in the application. Hence, the plaintiff prayed that the application may be dismissed.
5. I have heard the Ld. Counsels for the parties and have perused the material available on record including the written submissions filed by the defendant. .
6. Admittedly, the defendant issued the said cheque.
7. Counsel for the defendant pleaded that there was no business transaction between the plaintiff and the defendant, therefore, there was no occasion to issue the said cheque in favour of the plaintiff. In fact, the defendant had the business transaction with plaintiff's brother and had issued the said cheque to him as security. Once he demanded the balance commission and some form 'F', the plaintiff misused the said cheque to harass the defendant. Admittedly, the plaintiff got issued the legal notice dated 05.08.2011 to the defendant. The defendant replied the said notice on 24.08.2011. In the said reply, it is stated that the defendant delivered the said cheque as security to the plaintiff as the defendant was having business relationship with him. It is also stated that it was mutually agreed between the parties that the plaintiff would return the said cheque when the defendant would ask for the same. It is also stated that the said cheque was handed over as a security and not to discharge any liability. The averments made in the said reply are totally contrary to the averments made in the 3/6 Sh. Harish Karra Vs. Sh. Sunil Gupta application. As such, an adverse inference can be drawn against the defendant. Therefore, it can be held that the plaintiff and the defendant had the business relationship; and the said cheque was issued by the defendant to the plaintiff.
8. Now the question arises, why did the defendant issue the said cheque to the plaintiff. Case of the defendant is that he issued the cheque as security to the plaintiff's brother, but once he asked for the balance commission and some 'F' form, he got filed the present suit through the plaintiff to harass him. As discussed above, the defendant was having business relationship with the plaintiff and not with his brother; and the cheque was issued to the plaintiff and not to his brother. Secondly, the defendant has failed to mention the quantum of balance commission and number of forms asked for by him. He only made the vague averments to this effect. The defendant denied having taken any loan from the plaintiff. The certificate dated 29.04.2013 issued by Kotak Mahindra Bank shows that the cheque no.000001 had been cleared on 24.06.2010 in favour of the firm of the defendant for Rs.7,50,000/ from the account of the plaintiff. This shows that the plaintiff gave Rs.7,50,000/ to the defendant. The defendant has failed to explain once he had no business relationship with the plaintiff and had not taken any loan from him then on what account he accepted Rs. 7,50,000/ from the plaintiff. Hence, it can be inferred that the defendant took the friendly loan from the plaintiff. Bank memos dated 15.04.2011 and dated 27.07.2011 reveal that the said cheque was dishonoured twice for the reason "insufficient funds". Therefore, it can be held that the defendant issued the said cheque to the plaintiff towards discharge of his liability, 4/6 Sh. Harish Karra Vs. Sh. Sunil Gupta however, he failed to pay the said amount despite receipt of legal notice dated 05.08.2011.
9. In the present case, the defendant filed the written submissions. In the said submissions, the defendant raised a plea that the plaintiff manipulated/filled up the date in the said cheque later on. He also pleaded that according to the plaintiff, the defendant handed over the cheque on 23.06.2010 while he pleaded that loan was granted on 24.06.2010. As such, according to the plaintiff, the loan was given one day after the receipt of the cheque which is not possible. To substantiate the same, he relied upon the cross examination of the plaintiff herein, recorded in CC No.985/KV/11 recorded on 02.11.2012. Firstly, the said submissions are beyond pleadings. Secondly, in the application and the reply dated 24.08.2011, it is no where the case of the defendant that plaintiff manipulated the said cheque. So far as the handing over of the cheque and date of loan is concerned, the certificate dated 29.04.2011 reveals that the cheque handed over to the defendant was cleared on 24.06.2010 and not that the loan was itself given on 24.06.2010. Therefore, there is no substance in the plea raised by the defendant.
10. In view of the foregoing discussions, it can be held that the defendant took the friendly loan of Rs. 7,50,000/ from the plaintiff via cheque and realized the same. To repay the loan, the defendant issued the said cheque which was dishonoured on presentation. Therefore, statement of the plaintiff recorded in CC no. 985/KB/11 on 02.11.2012 is of no consequence for the defendant. In view thereof, the judgments 187 (2012) DLT 285 titled as "Hari Niwas Gupta Vs. Om Propmart P. Ltd. & Ors."; 187 (2012) DLT 333 5/6 Sh. Harish Karra Vs. Sh. Sunil Gupta (DB) case titled as "Krishan Kumar Karnani Vs. Reliance Industries Ltd. & Anr."; 2011 (3) RCR (Civil) SC 308 case titled as "Tatipamula Naga Raju Vs. Patte Padmavathi"; and AIR 2011 Delhi 341 case titled as "Goyal Tax Fab. Pvt. Ltd. Vs. Anil Kapoor", relied upon by the defendant are not applicable in the present case.
11. In view of the foregoing discussions, it is held that no tribal issue is raised by the defendants. Therefore, the application is dismissed. ANNOUNCED IN THE OPEN COURT, Today i.e. on 03rd day of August, 2013.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
03.08.2013
6/6 Sh. Harish Karra Vs. Sh. Sunil Gupta
ID No. 0240IC0829032008
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO. 378/2012
Harish Karra
Karta Harish Karra and Family (HUF),
R/o J144, Phase1, Ashok Vihar,
Delhi110 052. .........Plaintiff
Versus
Sunil Gupta
s/o Sh. Om Prakash Gupta,
sole proprietor of:
M/s. Shyam Textile Impex,
4532, Arya Samaj Road,
Karol Bagh, New Delhi110005 ........Defendant
Date of Institution : 10.10.2012
Date when the case reserved for order : 03.08.2013
Date of Order : 03.08.2013
J U D G M E N T
1. The plaintiff filed the suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.7,50,000/ along with pendentelite and future interest @ 18% p.a. against the defendant.
7/6 Sh. Harish Karra Vs. Sh. Sunil Gupta
2. In the plaint, it is stated that the plaintiff is the Karta of Harish Karra & family (HUF). The defendant is the proprietor of M/s. Shyam Textiles Implex (the firm). The parties are known to each other for long time. The defendant approached the plaintiff and requested to grant friendly loan. The plaintiff agreed to the same and granted a friendly loan of Rs.7,50,000/ to the defendant vide cheque no.000001 drawn on Kotak Mahindra Bank. The said cheque was issued in the name of the firm and got encashed in the defendant's account on 24.06.2010. The said loan was repayable after March, 2011. To discharge his liability, the defendant issued a cheque no. 765193 dated 01.04.2011 for Rs.7,50,000/ drawn on State Bank of India. The plaintiff presented the said cheque for encashment, however, the same got dishonoured for the reason 'insufficient fund' on 15.04.2011. Once the plaintiff informed the defendant about dishonour of the cheque, he asked him to wait for two months. After two months, the plaintiff again presented the said cheque for encashment and that time also, the said cheque was dishonoured for the reason 'insufficient fund' on 27.07.2011. Left with no option, the plaintiff got issued the legal notice dated 05.08.2011. However, despite receipt of the said notice, the defendant failed to pay the amount. Instead, the defendant sent a reply dated 24.08.2011 making false averments therein.Hence, the present suit.
3. This suit is filed under order XXXVII of the CPC, 1908 and no relief has been claimed, which does not fall within the ambit of order XXXVII CPC.
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4. In response to the summon under order 37 of CPC, the defendant entered into appearance. In response to the summon for judgment, the defendant filed the application for leave to defend. Vide order dated 03.08.2013, the application for leave to defend has been dismissed. Therefore, the plaintiff becomes entitled to decree as prayed.
5. The rate of interest claimed @ 18% per annum is on higher side. A justifiable rate of interest is awarded to the plaintiff @ 9% per annum on Rs.7,50,000/ from the date of institution of the suit till realization.
6. In view of the foregoing discussions, the suit is allowed. The plaintiff is held entitled to a decree of recovery of Rs. 7,50,000/ along with interest @ 9% p.a. from the date of institution the suit till realization. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, Today i.e. on 03rd day of August, 2013.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
03.08.2013
9/6 Sh. Harish Karra Vs. Sh. Sunil Gupta