Delhi District Court
Puneet Jain vs Manoj Gupta on 9 October, 2024
Misc DJ 61/18
PUNEET JAIN Vs. MANOJ GUPTA
09.10.2024
Present: None for applicant.
SH. Hmanshu Garg, Ld. Counsel for the DH/non-
applicant through VC.
1. Matter is listed for orders on application of
defendant/applicant herein moved under Order XXXVII Rule 4
with Section 151 C.P.C. for setting aside ex-parte decree dated
27.04.2017 and allow the defendant to file leave to defend
alongwith affidavit.
2. The summary suit had been filed by the Plaintiff for the
recovery Rs.10,00,000/- along with interest @ 18 % per annum herein
and the same had been decreed vide judgment/order dated 27.04.2017.
3. The above mentioned application has been filed on the ground
that as per the service report of the Court dated 24.03.2017, the
mother of the Defendant had received the summons but as the
mother of the Defendant is too old and she is also not well since
long time and she is not even able to recollect the things
properly, therefore, she had not informed the Defendant at any
point of time regarding the summons issued by this Court and
thus, the Defendant was not aware of any such proceeding
pending before this Court at any point of time during the
pendency of the aforesaid suit. It has been further argued that
plaintiff had stated in the plaint that in the 2014, he was looking
out to take on rent a shop space in M-Block Market of Greater
Kailash-I, New Delhi- 110048 for running his business of
supplying/ selling ladies shoes and slippers and sometimes in the
month of November and December, 2014, he met with the
Misc DJ 61/18 Page no. 1/7
PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024
Defendant who was running a popular fast food joint in M-Block
Market, Greater Kailash-I and subsequently he visited the M-
Block Market, Greater Kailash-I in the month of January, 2015
and met with the Defendant several times during that period.
However, as a matter of facts, the Defendant ran a fast food joint
in M-Block Market, Greater Kailash-I till July, 2013 only and the
Defendant had left the said fast food joint in July, 2013 itself and
handed over the keys to the owner of the shop and therefore
meeting with the Plaintiff sometimes in the month of November
and December, 2014 does not arise. It has been further argued
after closing down the fast food joint in GK-I, the defendant has
joined a company named "Bueno Foods Pvt. Ltd" in Gurgaon in
as "Chief Operating officer and Co-Founder" since August 19,
2013 and still doing the same job. The copy of the
offer/appointment letter 19.08.2013 is annexed and the copy of
the certificate dated April 7, 2018 issued by the Company
certifying the bonafide of the Defendant is annexed. It has been
further argued that as per plaint, plaintiff gave the Defendant Rs.
10,00,000/- by way of cash who undertook to reimburse the same
within 3 months and thus, as per plaintiff, first time he met with
the Defendant in the month of November and December, 2014
and after 2 months of meeting, the Plaintiff gave the Defendant
Rs. 10,00,000/- that too by way of cash, however, no prudent
man can believe the story of the Plaintiff. It has been further
argued that as per Plaintiff, Defendant gave a receipt of receiving
Rs. 10,00,000/- dated 26.02.2015 but Defendant never gave any
such receipt and signature shown on the receipt is not of the
Defendant and is forged by the Plaintiff. It has been further
argued that as per the plaintiff, defendant only issued a cheque
Misc DJ 61/18 Page no. 2/7
PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024
bearing number 000018 dated 01.02.2016 for an amount of Rs.
10,00,000/- in favour of the Plaintiff but the aforesaid cheque
was bounced due to "Payment stopped by Drawer". It has been
further argued that the cheque book facility had been issued to
the Defendant by the Bank in November, 2014 and the entire
cheque book of the Defendant had been lost and the Defendant
had made a complaint qua the same before the Bank and on the
instructions of the Defendant, the payment of the entire cheque
book had been stopped on 12.06.2015, therefore question of
issuing a cheque dated 01.02.2016 does not arise at all. It has
been further argued that plaintiff deliberately had not filed a
complaint against the Defendant because he knew that if he filed
a complaint against the Defendant under 138 of NI Act, 1881, the
Court would summon the accused and if the accused failed to
appear before the Court, then court would issue Bailable/Non-
Bailable Warrant against the accused and any how would secure
his presence and defendant would disclose the truth. It has been
further argued that defendant has clearly established from the
aforesaid submissions that he did not have any knowledge about
this suit, therefore the decree dated 29.04.2017 is liable to be set
aside. The Supreme Court also, in the case of Vijay Singh us
Shanti Devi & Anr (2017) 8 SCC 837 has clearly explicated that
the court can set aside an ex parte decree when the summons
have not been duly served. An opportunity of hearing be given to
the Defendant to prove his bona fide by allowing the application
to leave to defend.
4. On the other hand, plaintiff/respondent has strongly opposed
the application by filing detailed reply. It has been argued that the present application is an abuse of the process of this Court. The Misc DJ 61/18 Page no. 3/7 PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024 application is hopelessly time barred and on this count alone the same deserves to be rejected and dismissed. The defendant was served in the main suit on 24.03.2017, however despite ample opportunity the defendant failed to either appear before the Court or file the Written Statement to the suit filed by the plaintiff. Consequently, the suit was decreed vide Judgment and final order dated 27.04.2017. The notice in the present execution petition was issued on 14.10.2017 and on 14.12.2107, the Judgment Debtor (JD) appeared in the matter and he sought time to engage a counsel. Thereafter, Court vide its Order dated 03.04.2018 issued Warrants of Attachment against the JD. However, the bailiff failed to execute the Warrants of Attachment without any reason or justification. The defendant has failed to give the age of his mother and documentary proof in support thereof. The defendant has further failed to place on record any medical document in support of his assertion qua the ill health of his mother. Even in the execution proceedings the defendant tried to evade and avoid the service and his mother refused to receive the court summons and consequently the defendant was served through the process of affixation upon refusal by his mother. The fact of overt act of defendant's mother's refusal of receipt of court notice, makes it abundantly clear that the mother of the defendant is wise, aware and conscious lady and understands the consequences of receipt or refusal of court notices/summons. The plea taken by the defendant with regard to showing the subject amount in the Income Tax Returns or any ledger account are completely misconceived and unsustainable in law and various judicial pronouncements. The fact that the defendant has completely failed to file any complaint before the concerned Misc DJ 61/18 Page no. 4/7 PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024 police or to initiate any other legal proceedings with regard to alleged loss of cheque book, proves it beyond doubt that the theory of loss of cheque book, asserted by the defendant is absolutely a cook and a bull story, concocted by the defendant to avoid payment of legitimate dues of the plaintiff. Law propounded by the Hon'ble Supreme Court of India in Vijay Singh Vs. Shanti Devi & Anr. (2017) 8 SCC 837, relied upon by the defendant, is not at all applicable to the facts and circumstances in the present case.
5. During Court proceedings, defendant has filed certain documents and thereafter, in terms of order dated 24.12.2018, defendant has filed affidavit stating that this Court on 24.12.2018 has directed the defendant to file the comprehensive affidavit highlighting, how, when and where and when he become aware that his cheque book was lost. The cheque book facility had been issued to the defendant by HDFC Bank Ltd., B-54A, GK-I, New Delhi -110048, in November 2014. On the eve of 11.06.2015 when he intended to issue cheque to some person against the pending payment, the defendant came to realize that he had lost the cheque book issued by HDFC Bank Ltd. to him. Being a layman and to the best of his knowledge, the defendant deemed it appropriate to only approach the aforesaid bank for the stopping of any transactions arising out of the lost cheque book on 12.06.2015. On the instruction of the defendant, the payment of the entire book had been stopped by HDFC Bank Ltd. on the same date i.e. 12.06.2015. This Court vide its order dated 03.07.2018 has directed the defendant to produce the documents which can substantiate the case of the defendant. The defendant had approached his bank the exact date of stoppingn of the Misc DJ 61/18 Page no. 5/7 PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024 cheque book facility owing to teh loss of the entire cheque book as aforesaid and the defendant's bank i.e. HDFC Bank Ltd. vide a letter dated 04.09.2018 certified that defendant has an account 00921000178731 with bank since 21.10.2012 and the cheque book bearing cheque no. 00001 to 000025 which was issued on 18.11.2014 was stopped on 12.06.2015. Out of the 25 cheques present in the cheque book, no cheque was ever issued by the defendant to anyone in relation to any transaction whatsoever. All the documents filed on behalf of the defendant in suppport of his claim are genuine and no document is forged and fabricated and if at any stage if the above documents found to be forged and fabricated, the defendant will solely be liable for persecution.
6. Arguments heard. Record perused.
7. Perusal of record shows that plaintiff filed the suit u/o 37 CPC and vide order dated 18.03.2017 process was issued to defendant. Thereafter, it was recorded vide order dated 06.04.2017 that defendant has been duly served. Thereafter, the defendant failed to file appearance and therefore, suit was decreed u/O 37 Rule 3 (2) CPC vide order /judgment dated 27.04.2017.
8. The defendant has assailed the service through his mother stating that due to old age and ailments, mother of defendant had not informed him. However, Court is in agreement with the plea of Ld. Counsel for plaintiff that defendant had failed to disclosed the age and ailments of his mother and therefore, the defendant will be deemed to be served.
9. The defendant had questioned the friendship between parties, factum of loan purportedly given by plaintiff to the defendant and issuance of cheque to the plaintiff. In support of his averments, defendant has filed ample documents and the authenticity of these documents can be ascertained during trial, however, certainly Misc DJ 61/18 Page no. 6/7 PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024 defendant has been able to raise probable defence to give him an opportunity to defend the suit and to prove his defence.
10. In view of above discussion, in the interest of justice, application of defendant u/O 37 Rule 4 CPC is hereby allowed and the judgment and decree dated 27.04.2017 is hereby set aside and defendant is granted unconditional leave to defend the suit.
11. The suit is restored to its original number and Ahlmad is directed to do the needful.
12. Defendant is directed to file WS within statutory time period with advance copy to the opposite party.
Put up for further proceedings on 27.01.2025.
Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.09 16:14:49 +0530 (Prabh Deep Kaur) District Judge-05 South-East District, Saket Court, New Delhi/09.10.2024 Misc DJ 61/18 Page no. 7/7 PUNEET JAIN Vs. MANOJ GUPTA Dated 09.10.2024