Delhi District Court
M/S True Link Finance Limited vs Mohd. Musharaf Ahmed Siddiqui on 12 December, 2012
IN THE COURT OF MS. NITI PHUTELA:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No. 251/11
Case ID No.02403C0165992010
M/s True Link Finance Limited
Registered. Office: D44,
Mohan Singh Market, Sector6,
R.K. Puram, New Delhi110022. ..........Plaintiff.
versus
1. Mohd. Musharaf Ahmed Siddiqui
S/o Shamim Ahmed,
C/o. Afsar Ali,
H.No.CII66/A, Raju Park, Khanpur,
Nr. Masjid, New Delhi110062.
Alternate Address
Mohd. Musharaf Ahmed Siddiqui
S/o Shamim Ahmed,
H.No.CI944, Dr. Ambedkar Nagar,
Madangir, New Delhi110062.
Alternate Address
Mohd. Musharaf Ahmed Siddiqui
S/o Shamim Ahmed,
Education Economic Development Society,
A56, JJ Colony, Khanpur,
New Delhi`110062.
CS No. 251/11 Page No. 1 of 10
2. Mubashir Ahmed S/o Md. Ahmed Siddiqi,
H.No.827, Balli Maran,
Chandni Chowk, Delhi110006.
Alternate address
Mubashir Ahmed, Teacher,
S/o Md. Ahmed Siddiqi,
Deptt. Education Department,
(I Card No.A28611),
MC Primary School,
Sani Bazar, Darya Ganj,
Nr. Golcha Cinema, New Delhi110002.
3. Shri Sunil Kumar S/o Sh. Kehar Singh,
H. No.RZ65, Gitanjali Park, Sagar Pur,
New Delhi110046.
Alternate address
Shri. Sunil Kumar, N.O.,
S/o Sh. Kehar Singh,
(Emp. Code No.20108240),
Room No.100, GFloor,
Xray Ultrasound Room,
Rao Tula Ram Memorial Hospital,
Jaffar Pur, New Delhi73. ..........Defendants
Date of Institution : 17.05.2010
Date of reserving the Order : 03.12.2012
Date of pronouncement : 12.12.2012
CS No. 251/11 Page No. 2 of 10
J U D G E M E N T
1. Vide this judgment, I shall dispose of application of defendants No.1, 2 & 3 for leave to defend.
2. Brief facts necessary for disposal of the above said application are as follows:
3. The present suit has been filed by the plaintiff under Order XXXVII of the CPC. It is the case of the plaintiff that plaintiff is a nonbanking financial company, duly incorporated under the Companies Act, 1956 and is engaged in the business of Hire Purchase and Financing. Shri Shashi Bhagria who is one of the directors of the plaintiff company has instituted the suit and is representing the plaintiff in the present case.
4. As per plaint, the defendant No.1 proposed to the plaintiff on 29.06.2008 to take on Hire Purchase Finance one HCL Computer chosen by him at Shilpi Electronics, 40/11, Pilli Kothi, MB Road, New Delhi63. For this defendant No.1 has also given guarantee of defendant No.2 and 3. Plaintiff after verification accepted the offer of defendant No.1 as per which defendant No.1 had to pay 18 monthly hire installments of Rs.1386/ per month starting from 10.08.2008 continuing on 10th of each consecutive month. The last payment was CS No. 251/11 Page No. 3 of 10 to be made on 10.01.2010. As per plaintiff defendant No.1 also agreed to pay overdue interest @ 2.5%pm in case of any delay in paying the hire installments. Defendant No.1 was also given option to absolutely purchase the article by paying whole of the hired amount i.e. Rs. 24948/. For this Hire Purchase Finance, various documents were executed by parties on 07.08.2008.
5. As per plaintiff against the amount of Rs.24948/ the defendant had paid Rs.15100/ only and an amount of Rs.9848/ is still outstanding against defendant on which the defendant is also liable to pay interest for the amount of Rs.2231/. Thus as per plaintiff the defendant has not paid the whole of the hired amount and this gave the plaintiff cause for action for filing the present suit against defendants.
6. Summons for appearance were issued against all the defendants under the provisions of Order XXXVII of the CPC as per Form 4 Appendix B Schedule 1 of the CPC and all three defendants appeared and filed their respective appearances. Later on service of summons for judgement, the defendants filed their respective leave to defend applications. Various grounds which have been taken by all defendants are discussed one by one.
7. In his application for leave to defend, the defendant No.1 has CS No. 251/11 Page No. 4 of 10 taken following grounds:
(i) Firstly the defendant prayed that suit of the plaintiff is liable to be dismissed for nonjoinder of necessary parties. As per him Shilpi Electronics from whom computer was purchased is necessary party and the same is not made a party by plaintiff.
(ii) Secondly, as per defendant No.1 Shilpi Electronics quoted price of HCL computer as Rs.31948/ for which Rs.7000/ was to be paid in cash and rest of the amount of Rs.24948/ was to be financed by plaintiff. Later on defendant No.1 was informed that defendant No. 2 had refused to stand as surety and he was asked to furnish another surety for the Hire Purchase Finance. Thus defendant No.3 stood as guarantor for defendant No.1 on 15.07.2008 and Shilpi Electronics again called defendant No.1 to pay Rs.7000/ on assurances that this amount will be adjusted in his Hire Purchase Finance amount.
(iii) Thirdly, as per defendant No.1 he had already paid Rs. 29,200/ to the plaintiff till 22.08.2009 and admitted that liability against plaintiff is only for Rs.2,478/ and not for the amount claimed by plaintiff in his present suit, but his computer is still not working and the same has not been repaired by Shilpi Electronics.
8. Defendant No.2 in his leave to defend application has taken CS No. 251/11 Page No. 5 of 10 following grounds:
(i)As per defendant No.2 the matter is between plaintiff and defendant No.1 and defendant No.2 has no liability.
(ii)Defendant No.2 has alleged that he had signed blank papers at the time of execution of documents and at the time of verification i.e. in July 2008 he refused to become surety of defendant No.1. He thus claimed that leave to defend may be granted to him so that verification form can be called from the plaintiff.
9. Defendant No.3 in his leave to defend application has taken following grounds:
(i)As per him suit does not fall under Order XXXVII of the CPC.
(ii)Plaintiff has not come up with clean hands.
Thus vide their respective leave to defend applications, all the defendants have claimed that their are various triable issues and have thus sought unconditional leave to defend the present suit.
10. Replies were filed by the plaintiff to the leave to defend applications of the defendants.
11. Arguments were addressed by the plaintiff and defendant No.1 but despite opportunity no arguments were addressed by defendant CS No. 251/11 Page No. 6 of 10 Nos.2 and 3.
12. Heard. Record perused.
13. Firstly I shall discuss the grounds taken by defendant No.1. The defendant No.1 has admitted his liability to the tune of Rs.2478/ and the plaintiff has claimed the amount of Rs.9848/ as the principal amount and Rs.2231/ as interest overdue till 10.05.2010. Thus defendant No.1 is disputing his liability to the tune of Rs.7370/ (which is the differential amount). In regard to this amount of Rs. 7000/, the defendant has taken stand in his leave to defend application that he made the payment of Rs.7000/ on 15.07.2008 to Shilpi Electronics when defendant No.2 refused to become his guarantor and defendant No.3 was introduced as new guarantor. In support of his claim he has filed on record copy of document dated 15.7.2008. On perusal it is evident that the same is a "delivery challan" and not a "receipt". In common parlance delivery challan is raised when any commodity is delivered and the same is not raised for acknowledgment of receiving of money. Vide that delivery challan an LCD monitor was delivered to defendant No.1 but no receipt of Rs. 7000/ was given to defendant No.1.
14. Thus in view of this discussion, the defence taken by CS No. 251/11 Page No. 7 of 10 defendant No.1 that he has made payment to Shilpi Electronics for a sum of Rs.7000/ falls flat on ground because no prudent person will make any payment without demanding the receipt of the same. Even if for the sake of arguments it is believe that defendant had paid Rs. 7000/ to Shilpi Electronics then that is a different cause of action and plaintiff has no role to play in that transaction.
15. As to the contention of defendant No.1 that he stopped further payment to plaintiff because his computer was not in working condition then regarding that defendant No.1 had a legal recourse available with him against Shilpi Electronics for which plaintiff has not to suffer because plaintiff has no role to play even in that case.
16. Secondly the defence put forward by defendant No.2 that he refused to become guarantor of defendant No.1 later on when verification by plaintiff was done also have not much force in it because signatures of defendant no.2 are there on hire purchase agreement and no documentary proof is filed by defendant No.2 that he later on refused to stand as guarantor. If there was revocation of guarantee then as a prudent person he should have informed the plaintiff regarding his disinclination for the same but this was not done by the defendant. He has also taken a stand that he signed on CS No. 251/11 Page No. 8 of 10 blank documents. This defence was taken by him for the first time in his leave to defend application and no record is filed to prove that he had put forward his grievance in writing to the plaintiff apart from that in his leave to defend application. In various judgments of Hon'ble Delhi High Court, the Hon'ble Court has opined that where for the first time the defence of blank cheques, blank papers is taken by defendant in leave to defend application then the defence put forwards is to be considered as moon shine and as an after thought because no prudent person will not take any action which law provides him. The judgment of Hon'ble Delhi High Court in Punjab and Sind Bank vs. Ram Parkash Jagdish Chander and Ors reported as (1991) 70 Comp. Cas. 20 Delhi: MANU/DE/0142/1991 also supports the opinion discussed above.
17. Thus the defence taken by defendant No.2 is an after thought and moonshine.
18. Thirdly the defence taken by defendant No.3 is that suit does not fall under Order XXXVII CPC. The suit is based on a written agreement which is duly signed by all the parties and which squarely comes within the purview of order XXXVII CPC and the defence taken by defendant No.3 is totally hollow and is taken for the sake of CS No. 251/11 Page No. 9 of 10 putting forward a defence without any substance in the same.
19. Thus all the defendants have failed to prove that any triable issue is there in the present case. Thus no opportunity can be given to all the defendant to defend the present suit.
20. As per the provisions of Order XXXVII Rule 3 CPC if the leave to defend application of the defendant is dismissed, the plaintiff is entitled to decree. The plaintiff in the present suit has claimed Rs. 9848/ as the principal amount and Rs.2231/ as the interest which is @2.5% per month which is too high an amount thus the suit of the plaintiff is decreed only for the sum of Rs.9848/ along with interest @ 8% per annum from the date of the suit till the date of decree. All the defendants are liable to pay the above said amount jointly and severally. No order as to cost.
21. Decree sheet be prepared accordingly.
22. File be consigned to record room.
Announced in the open Court (NITI PHUTELA)
dated 12.12.2012. Civil Judge02 (South)
Saket Courts, New Delhi.
CS No. 251/11 Page No. 10 of 10