Delhi District Court
R. N. Jain vs Late Sh. Arun Aggarwal Through Lrs on 23 January, 2023
IN THE COURT OF MS. RAVINDER BEDI,
ADDITIONAL DISTRICT JUDGE-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CS No: 52/2020
CNR No. DLSH01-000756-2020
R. N. Jain, Advocate,
Chamber No. F-216, Karkardooma Courts, Delhi.
.........Plaintiff
Versus
Late Sh. Arun Aggarwal through LRs :
1. Sh. Ankur Aggarwal
C/o Regal Carbide Dies Pvt. Ltd.
At Block-A, Shed No. 9, DSIDC Work Centre,
Jhilmil Colony, Delhi.
and
2. Sh. Gaurav Aggarwal
R/o H. No. B-808, G. C. Centrum,
Ahinsha Khand-2, Indirapuram, Ghaziabad, UP
.........Defendants
Date of Institution of Suit : 24.01.2020
Date of Final Arguments : 20.12.2022
Date of Judgment : 23.01.2023
Appearance:
Mr. Rakesh Satija and Mr. Jitender Kumar, Ld. Counsels for Plaintiff.
Mr. Akashdep Pandey and Ms. Shakuntala, Ld. Counsels for LRs of
Defendant (since deceased).
CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.1 of 11
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date: 2023.01.25
14:44:16 +0530
ORDER
1. This order shall dispose off an application on behalf of Mr. Arun Aggarwal through LRs under Order XXXVII Rule 3 (5) of CPC dated 12.03.2020 seeking grant of leave to defend the suit.
2(a). In nutshell, the case of plaintiff is that he is a practising Advocate at Karkardooma Courts. Defendant (now deceased) had approached Plaintiff in the month of June 2012 at his Chamber for filing of two cases before DCDR Forum, Mehrauli, Delhi and thus Plaintiff was engaged as an Advocate by Defendant in both matters. A fee of Rs.1,10,000/- each for two cases was settled between parties. During trial of the said cases, however, neither Defendant nor his sons / daughter-in-law appeared on a single date. On receipt of copy of Judgments, sons and daughter-in-law of Defendant (since deceased) again approached Plaintiff in last week of November 2017 at his Chamber to file execution petition. They also assured Plaintiff to pay the dues of Rs.2,20,000/-. Believing upon their words, Plaintiff drafted two execution petitions with further fee of Rs.1,00,000/- each, as settled between parties. Defendants however did not pay even a single penny either towards arrears of fee / miscellaneous expenses nor had appeared before Executing Court despite being reminded by Plaintiff.
CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.2 of 11
Digitally signed
by RAVINDER
BEDI
RAVINDER
Date:
BEDI 2023.01.25
14:44:20
+0530
(b). Plaint avers that Defendants admitted their dues and ultimately
settled the matter and agreed to pay Rs.4,15,000/- and to discharge this liability, issued a cheque No.000050 dated 28.11.2019 of Rs.4,15,000/- drawn on HDFC Bank, Manak Vihar with instructions to present the same in first week of December 2019. The said Cheque when presented with Banker by plaintiff was dishonored on 05.12.2019 for the reasons 'payment stopped by drawer' and this fact was informed to Defendants but in vain.
3. Summons for appearance in prescribed Form 4 Appendix B of CPC were issued upon the Defendant. Defendant entered his appearance and furnished his address for service of summons for judgment. Defendant also moved an application seeking leave to defend the present suit under Order XXXVII Rule 3(5) CPC on 12.03.2020. During proceedings, Defendant passed away and the legal representatives of Defendant were taken on record.
4. In the application seeking leave to defend, it is contended by Counsel for Defendants/LR's that the present suit is false and does not fall within purview of Order 37 CPC; that Defendant/LRs had engaged Plaintiff as their Advocate with legal fee of Rs.25,000/- each per case, which had been paid through cheque No.652425 drawn upon ICICI Bank, New Delhi and another cheque bearing No.030194 darwn upon State Bank of Bikaner CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.3 of 11 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.25 14:44:24 +0530 and Jaipur, Vivek Vihar; it is admitted that Plaintiff was engaged as an Advocate to file petitions before Hon'ble DCDR Forum; that it was Plaintiff who had advised Defendant to file executions for recovery of the amounts in the exparte Decree passed in favour of Defendant in the year 2017; that Defendant had already paid a lot of money to Plaintiff for miscellaneous expenses besides professional fee. It is denied that fee of Rs.1 lakhs each for execution petition was settled between parties. In fact, the legal fee settled between parties was 30% of the amount on its recovery out of execution proceedings. It is contended that Plaintiff forced upon the Defendant to issue a blank cheque No.000050 to him on the plea that it would be filled after wining the execution petitions. It is stated that Plaintiff was duly paid an amount of Rs.30,000/- as pleader's fee. Ld. Counsel for defendants argued that there were several triable issues involved between parties which required evidence. Ld. Counsel has placed reliance upon judgment of Deepa Bhure and others v. Jai Kishan and another, CS(OS) 3324/2018 decided by Hon'ble Delhi High Court and Ramjas Foundation and others v. Union of India and others, CA No.6662 of 2004 (DOD :
09.11.2010) by Hon'ble Apex Court in support of her submissions and also filed written submissions on 21.12.2022.
5. Ld. Counsel for plaintiff per contra submits that plaintiff has an undisputed liquidated claim against Defendants and application does not raise any substantial defence or triable issues and thus Plaintiff is entitled to summary Judgment. Reliance is placed by Ld. Counsel for Plaintiff on CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.4 of 11 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.25 14:44:29 +0530 judgments of Mukesh Jain v. Akash Gupta, 2014(2) CLJ 321 Del; Kalyani Surgical and Medical Store v. Cachet Pharmaceuticals Pvt. Ltd. 2016(2) CLJ 627 Del; Kembiotic Labouratories & Ors v. Rana Inderjit Singh 2016(4) CLJ 288 Del and Chander Pal Singh v. Shripal Singh RSA 20/2022 & CM Appls 8771/72/2022 (DOD : 17.12.2022 by Hon'ble Delhi High Court).
6. I have heard respective contentions of the parties, gone into written arguments and have perused the records along with the documents annexed in the light of the relevant statutory provisions of Order 37 CPC.
7. Order 37 of CPC is a special enactment which provides for summary procedure of recovery in special circumstances. The essence of the summary procedure is that defendant is not, as in an ordinary suit, entitled as of right to defend the suit, and for defending the suit, he must apply for leave to defend within span of 10 days from the date of service of summons, and leave will be granted only if affidavit of Defendant discloses such facts as will make it incumbent upon Plaintiff to prove consideration or such other facts as court may deem sufficient.
8. Apart from the legal propositions, this court is aware of the judicial opinions expressed and the principles laid down in cases titled as:-
(I) B.L. Kashyap & Sons Ltd. vs. M/s JMS Steel and Power CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.5 of 11 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2023.01.25 14:44:32 +0530 Corporation (DOD as 18.01.2022 by Hon'ble Apex Court) (ii) Goyal MG Cases Vs. Premium International 138(2007)DLT 259. (iii) S.C. Rastogi Vs. Renu Kalra & Another 127 (2006) DLT 793 and (v) Sunil Enterprises Vs. SBI Comm. & International Banking AIR 1998 SC 2317.
9. In the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd 2017(1) SCC 568, Hon'ble Apex Court modulated the principles laid down in Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] and it was observed as follows: -
" 17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend. 17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.6 of 11 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2023.01.25 14:44:46 +0530 assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit,(even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court......"
Though in the case of IDBI Trusteeship (supra), Hon'ble Apex Court observed that principles stated in paragraph 8 of Mechelec Engineers' case (supra) shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is ordinary rule and denial of leave to defend being an exception. Thus, prayer for leave to defend cannot be allowed in such cases where defendant has practically no defence or is unable to give out even a semblance of triable issues before the Court.
CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.7 of 11
Digitally signed
by RAVINDER
BEDI
RAVINDER
Date:
BEDI 2023.01.25
14:44:51
+0530
10. In Raj Narain Vs. HBN Housing Finance Ltd. 2013 SCC OnLine Del 3847 and Renu Aggarwal Vs. Baldev Raj Sachdeva 2018 SCC OnLine Del 12299, it was held that "if such unsubstantiated and vague pleas were to be entitled to grant of leave to defend, I fail to fathom as to in which cases, leave can be refused and if such interpretation is to be taken, the same would render the provisions of Order XXXVII of the CPC nugatory..."
It was further held that if on such pleas leave to defend were to be granted, the same would not serve the purpose for which Order XXXVII incorporated in the CPC, to provide summary procedure for disposal of some kind of suits and would result in leave to defend being granted qua all suits filed under Order XXXVII of the CPC, making the procedure for disposal thereof more elaborate rather than summary.
11. Similarly, in Sasumorov Enterprises Pvt. Ltd. Vs. Odeon Builders Pvt. Ltd. 2018 SCC OnLine Del 12509 it was held that once the defendant does not dispute the transaction, amount due whereunder is claimed by the plaintiff, it is incumbent on the defendant to produce its statement of account to disprove the claim of the plaintiff and to show the status of the said transactions in the books of the defendant statutorily required to be maintained. A defendant cannot be permitted to convert a summary suit to an ordinary suit, by mere denial and by contending that the onus is on the plaintiff to prove. It was further observed that Order XXXVII of the CPC, if so interpreted, will defeat the legislative intent and CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.8 of 11 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.25 14:44:55 +0530 will make the procedure for disposal of suits of the class intended to be summarily decided, longer rather than shorter. The defendant, in the leave to defend application, is required to plead all surrounding circumstances concerning the document, to create a doubt as to authenticity of the document and if the defendant does not plead so and/or does not produce documents which in the ordinary course of the transaction ought to be with the defendant, leave to defend has to be refused.
12. In the decisionof Versatile Commotrade Private Limited Vs. Balraj 2019 SCC OnLine Del 6558, it was held that a defendant in a suit under Order XXXVII cannot be entitled to leave to defend, merely by taking a plea and without giving particulars and filing documents as would logically be available in support of the said plea. If he fails to do so, he cannot be entitled to leave to defend.
13. Applying the principles as explained above to factual matrix of instant case, it is observed that Plaintiff's case is based upon Cheque in question. Defendant has taken the plea that the Cheque was taken by Plaintiff by forcing upon Defendant without any further reason for the same. In the present case, as the execution of cheque has been admitted, Defendants have not rebutted this by eliciting or producing anything on record. The plea of Defendants is that the blank signed cheque was given by Defendants to Plaintff which was misused by him. The plea is meritless as under Section 20 of Negotiable Instruments Act, a right is created in the CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.9 of 11 Digitally signed by RAVINDER BEDI RAVINDER Date: BEDI 2023.01.25 14:44:59 +0530 holder of the cheque. When a blank cheque is signed and handed over, it means that person signing it has given an implied authority to any subsequent holder to fill it up. Prima facie, holder thereof is authorized to complete the incomplete inchoate instrument. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. A person issuing a blank cheque is supposed to understand the consequences of doing so. Hence the plea is of no assistance to Defendants (Jaspal Singh v. State, Crl. Rev. 160/2016 by Hon'ble High Court of Delhi and Ravi Chopra v. State 2008 (102) DRJ 147, relied on). Defendants have failed to account for handing over of cheque to Plaintiff or alleged misuse by the plaintiff. Therefore, I observe that pleas of Defendants are illusory and sham and no reasonable or plausible defence has been raised by them warranting allowing of application.
14. The amount claimed is a liquidated amount emerging from Cheque in question which is subject matter of Order 37 CPC. I find that grounds/defence taken by Defendants are non-substantive and unfounded. Defendants have no triable issues established on record nor is there some fact that needs to be proved contrary to facts established on record by Plaintiff of its claim of outstanding amount payable against Defendants which require any adjudication through trial as an ordinary suit.
15. Consequently, application of Defendants under Order 37 Rule 3(5) CPC for grant of leave to defend the suit stands dismissed.
CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.10 of 11
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2023.01.25
14:45:04 +0530
Accordingly, Plaintiff is entitled for a judgment/decree of claim prayed for. Plaintiff is entitled to a money decree for an amount of Rs.4,15,000/- (Rupees Four Lakhs Fifty Thousand) along with an interest @ 8% per annum from the date of dishonorment of Cheque till its realization. Plaintiff is also entitled to costs.
16. Decree sheet be prepared and file be consigned to record room after due compliance as per rules. Digitally signed by RAVINDER RAVINDER BEDI Announced in the open court.
BEDI Date:
2023.01.25
14:45:11
On 23.01.2023 +0530
(RAVINDER BEDI)
Additional District Judge-02,
Shahdara, KKD Courts, Delhi
23.01.2023
CS No.52/2020, R. N. Jain v. Late Sh. Arun Aggarwal through LRs Page No.11 of 11