Delhi District Court
Mukesh Sharma vs Mr.Devender Kumar on 10 March, 2017
IN THE COURT OF MS RAJRANI: ADDITIONAL DISTRICT
JUDGE05: WEST: TIS HAZARI COURTS: DELHI.
CivDJ/611207/2016
Mukesh Sharma
S/o Anand Prakash Sharma
R/o WZ31A, Possangi Pur,
Janak Puri, New Delhi110058. ...........Plaintiff
Versus
1.Mr.Devender Kumar S/o Shri Mangli Ram
2.Smt. Rinki W/o Mr. Devender Kumar R/o J1/30B, Chankaya Place, PartI, New Delhi110059.
Also At New Light Hair Dresser WZ35D, Possangi Pur Market, Near Sunil Dairy, Janak Puri, New Delhi110058. .........Defendants Date of Institution:13.11.2014 Date of pronouncement:10.03.2017 O R D E R
1. By this common order, this court shall decide the application for seeking leave of the Court to defend the case and the present suit which has CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 1/11 been filed by the plaintiff under Order 37 CPC for recovery of Rs. 4,36,000/ (Rupees Four Lacs Thirty Six Thousand Only) under Order XXXVII of CPC.
2. For proper adjudication of the present suit, it would be appropriate to reproduce the summarized version as incorporated in the plaint.
3. Plaintiff has filed the present suit stating therein that the defendants approached the plaintiff, and requested for a friendly loan of Rs.4,00,000/ (Rupees Four Lacs Only) as they required the same being in financial crisis. Due to family and friendly relations, the plaintiff had advanced friendly loan of Rs.4,00,000/ on 01.12.2011 to the defendants. The defendants also executed one promissory note and one cash receipt dated 01.12.2011 for the above said transaction which is signed by witnesses. It is further stated that the plaintiff had given a friendly loan of Rs.4,00,000/ in above said one installment to the defendants for a period of one and half year only. The defendants had promised to pay the said friendly loan amount within a period of one and half year. The defendants also voluntarily offered interest @ 1% per month which is mentioned in the said promissory notes. It is further stated that to repay the above said friendly loan, the defendant no.1 handed over four cheques i.e. cheque bearing no.170104 dated 02.04.2013 for Rs.1,00,000/, cheque bearing no.170105 dated 09.04.2013 for Rs.1,00,000/; cheque bearing no.170106 dated 18.04.2013 for Rs.1,00,000/ and cheque bearing no.170107 dated 03.05.2013 for Rs.1,00,000/ all drawn on ICICI Bank, Janak Puri Branch, New Delhi.
4. It is further stated that above mentioned cheques were presented for encashment as per the timely instructions of the defendant no.1 and CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 2/11 defendant no.2, but the said cheques got dishonoured for reason "payment stopped by drawer" vide four returning Memo dated 20.05.2013. The plaintiff informed the defendants about the said fates but the defendants not only refused to make the payment but also threatened the plaintiff for dire consequences. It is further stated that the plaintiff has no other option but to initiate legal proceedings against the defendants. The plaintiff sent Legal Notice dated 29.05.2013 through his advocate Shri Vijay Kumar Sharma vide registered post, speed post and courier. Since the defendants have defaulted in making the payment, therefore plaintiff has filed the present suit.
5. Plaintiff has placed on record Original Promissory Note and cash receipt dated 01.12.2011 for Rs.4,00,000/; Original Four Cheques i.e. cheque bearing no.170104 dated 02.04.2013 for Rs.1,00,000/; Original Four Cheques i.e. cheque bearing no.170105 dated 09.04.2013 for Rs.1,00,000/; Original Four Cheques i.e. cheque bearing no.170106 dated 18.04.2013 for Rs.1,00,000/; Original Four Cheques i.e. cheque bearing no.170107 dated 03.05.2013 for Rs.1,00,000/ all drawn on ICICI Bank, Janak Puri Branch, New Delhi110058 in favour of plaintiff in discharge of their legal debts; original four returning memos, Original legal notice dated 29.05.2013 and Original receipts of registered post, Speed Post and Courier.
6. Summons for appearance was duly served upon the defendants in form no.4 as prescribed in appendix B of Code of Civil Procedure, 1908. Pursuant to summons for appearance, defendants entered their appearance on 09.06.2016 and furnished their address for service of summons for judgment. Summons for judgment were issued to the defendants and defendants appeared and sought leave of this court to defend the case by CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 3/11 moving the present application for leave to defend.
7. The defendants have filed the present application for leave to defend on the ground that the applicant/defendant no.1 was having friendly relation with plaintiff and in the year 2011 the defendant no.1 got friendly loan of Rs.40,000/ from plaintiff which was returned by the defendant no.1 to the plaintiff in the year of 2013 and to that effect plaintiff signed a document dated 10.08.2013 and he admitted there in that he has received Rs.40,000/ back from defendant no.1 and now nothing is due against the defendant no. 1/applicant. It is further stated that in the said document, the plaintiff also under take to return the four blank cheque and promissory note only signed by the defendant/defendants and do not misuse the same, but the plaintiff did not do so and he filed the present false and frivolous suit for recovery of Rs.4,36,000/ against the defendants/applicants with malafide intention only to extort money from the defendants. It is further stated that now nothing has to be paid by the defendants to the plaintiff as plaintiff has already received back his loan amount of Rs.40,000/ from the defendant no.1.
8. It is further stated that said four blank cheque and promissory note in question only signed by the defendant/defendants, were given by the defendant no.1 to the plaintiff only for security purpose and not against any loan liability of the defendants/applicants. It is further stated that the cheques and promissory note are now nothing but the same are false, fabricated and self manipulated documents by the plaintiff as such same are liable to be declared null and void illegal and ineffective. The defendant no.1 has thus substantial triable issues and to prove the same, leave to defend the suit is liable to be granted to the defendant, as the same cannot be decided without CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 4/11 leading evidence. If defendant no.1 is not granted leave to defend the suit, the defendant shall suffer irreparable loss and injury.
9. In response to leave to defend application, the plaintiff filed the reply stating therein that defendant no.1 has prepared a false and forged document and on the said document, the defendant no.1 has narrated a concocted story. On the basis of the said false document, defendants want to grab the hard earned money of the plaintiff. Other contents are also denied by the plaintiff in their reply to application for leave to defend and prayed that application may be dismissed.
10. I have carefully perused the record and gone through the submissions made by Ld. Counsels for both parties. Counsel for the parties argued on the lines of their respective pleadings.
11. The main ground taken by the defendants in their leave to defend is that defendant no.1 got friendly loan of Rs.40,000/ only from the plaintiff in the year 2011 and four blank cheques and promissory note only signed by the defendants were given to the plaintiff by defendant no.1 only for security purposes and not against any loan liability of defendants. It is contended that defendant no.1 has already paid the said amount of Rs.40,000/ to the plaintiff and to that effect plaintiff signed a document dated 10.08.2013 where plaintiff has acknowledged that he has received Rs.40,000/ from the defendant no.1 and undertaken to return the four blank cheques and promissory note only signed by the defendants. It is further contended that the defendants did not return the said cheques and promissory note and has filed present false and frivolous suit against the defendants.
CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 5/1112. It is unbelievable that a person who is taking loan of Rs.40,000/ has issued four blank cheques and one blank promissory note. It is also not believable that a person who obtained receipt of Rs.40,000/ for repayment of loan, has not taken back four cheques and promissory note specifically when all these cheques and promissory note are blank.
Had the defendants made the payment of Rs.40,000/ to the plaintiff, he would have received back his four cheques and promissory note from the plaintiff on the same day. Further there is no averments in the application for leave to defend that defendants ever requested the plaintiff to return their four blank cheques and promissory note and same has been denied by the plaintiff. In the present case, cheques have been dishonoured on account of payment stopped by drawer which further shows the conduct of the defendant that after issuing four cheques, defendant no.1 had instructed his bank to stop the payment from his account. Plaintiff also sent a legal notice dated 29.05.2013 through his advocate vide registered post. In their entire leave to defend, defendants have not denied about the receipt of legal notice dated 29.05.2013.
13. Order 37 Rule 3(5) of CPC reads as under:..........
"(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 6/11 the Court or Judge to be just:"
14. Order 37 Rule 3 (6) of CPC provides as under: "(6) At the hearing of such summons for judgment,
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith;"
15. Perusal of order 37 Rule 3(5) shows that defendant is entitled to leave to defend the suit if he raises substantial defence to contest the suit.
16. The principles governing the leave to defend under Order 37 have been laid down by Hon'ble Supreme Court of India in judgment "Civil Appeal No. 8194 of 2015, DOD: 01.10.2015, titled "State Bank of Hyderabad Vs RABO Bank" wherein it is held that:
"15. As regards the entitlement of a defendant to the grant of leave to defend, the law is well settled long back in the year 1949 in Smt. Kiranmoyee Dassi Vs. Dr. J. Chatterjee, AIR 1949 Cal 479, in the form of the following propositions:
If the defendant satisfies the court that he has a good defence to the claim on its merits, the plaintiff is not entitled to leave to sign the judgment and the defendant is entitled to unconditional leave to defend. If the defendant raised a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 7/11
If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend."
17. In view of settled proposition of law, I have examined the case put forth by the parties.
18. The main ground taken by the defendants in the leave to defend application is that defendant no.1 got friendly loan of Rs.40,000/ only from the plaintiff in the year 2011 and four blank cheques and promissory note only signed by the defendants were given to the plaintiff by defendant no.1 only for security purposes and not against any loan liability of defendants. It is contended that defendant no.1 has already paid the said amount of Rs.40,000/ to the plaintiff and to that effect plaintiff signed a document dated 10.08.2013 where plaintiff has acknowledged that he has received Rs.40,000/ from the defendant no.1 and undertaken to return the four blank cheques and promissory note only signed by the defendants. The ground taken by the defendants is not sustainable as the present suit has been filed by the plaintiff under Order XXXVII of CPC on the basis of the cheques and Section 118 of Negotiable Instrument Act 1889 interalia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration.
19. Section 139 of the Negotiable Instrument Act stipulates that unless the contrary is proved, it shall be presumed that holder of the cheque receives the same for the discharge of whole or part of any debt or liability. To disprove the presumption, the person who issued the cheques should bring CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 8/11 on record such facts and circumstances upon consideration of which the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. For rebutting such presumption, what is needed, is to raise a probable defence which the defendants have failed to raise in the present case.
20. The explanation put forth by defendants qua issuance of blank cheques appears to be unbelievable. The defendants have not placed any material whatsoever on record to show or suggest that cheques were not issued by defendant no.1 in discharge of his legal liability.
In view of above, the ground taken by the defendants is not sustainable and liable to be rejected.
21. Perusal of the record shows that plaintiff has filed the present suit for recovery of Rs.4,27,330/ on the basis of cheques. The defendants in their leave to defend has not denied the issuance of cheques but has taken a defence that they have already made the payment of loan of Rs.40,000/ on dated 10.08.2013 with the understanding that plaintiff shall return the four blank cheque and promissory note only signed by the defendants and do not misuse the same and defendants issued the cheques in question for security purposes but the plaintiff has misused the same.
22. The present case has been filed under Order 37 CPC and in view of the provisions of Subrule 2 of Rule 1 of Order 37, summary suit on the basis CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 9/11 of cheque is maintainable and objections taken by the defendant in this regard are not tenable. Further, it is noted that defendants have not denied issuance of cheques and defence taken by the defendants in the present application is not sustainable.
23. It is settled law that 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 defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendants are established there would be a good or even a plausible defence on those facts.
24. The facts disclosed by the defendants do not indicate that they have a substantial defence to raise and defendants have failed to raise any fair dispute which requires trial.
25. In view of the settled proposition of law and in the facts and circumstances of the present case, this Court is of the opinion that defendants have failed to disclose any substantial defence or any triable issue and defendants are not entitled to leave to defend the suit. The application for leave to defend is hereby dismissed.
26. Since, the defendants have failed to raise any fair dispute and their leave to defend have been dismissed, therefore, in terms of Order 37 Rule 3 (6), plaintiff is entitled to judgment forthwith against defendants.
27. Accordingly, a decree is passed in favour of the plaintiff and against CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 10/11 the defendant no.1 for a sum of Rs.4,00,000/(Rupees Four Lakhs Only) along with pendentlite interest @ 6% per annum simple from the date of filing of the suit till actual realization of decretal amount.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (RAJRANI)
Dated : 10.03.2017 Additional District Judge:05
West:Tis Hazari Courts:
Delhi
CivDJ/611207/2016 Mukesh Sharma Vs. Devender Kumar& Ors. Page No. 11/11