Delhi District Court
Krishan Kumar vs Simmi Dhiman on 3 January, 2024
IN THE COURT OF SH. SHIV KUMAR
ADDL. DISTRICT JUDGE-02,
WEST DISTRICT-DELHI.
Civ DJ No.- 204/23
CNR NO. DLWT01-002567-2023
Krishan Kumar
S/o Sh. Banwari Lal
R/o RZ/D-85, Nihal Vihar,
Nangloi, Delhi-110041
.......Plaintiff.
Versus
1.Ms Simmi Dhiman W/o Late Sh. Sanjay Kumar Dhiman R/o F-4, Tower-24, Type-3, Kidwai Nagar, East, Near INA Metro Station, Delhi-110023 Mobile no. 8506922124
2. Sh. Yash Dhiman S/o late Sh. Sanjay Kumar Dhiman R/o F-4, Tower-24, Type-3, Kidwai Nagar, East, Near INA Metro Station, Delhi-110023 Mobile no. 9582160910 .....Defendants Date of institution of the case : 22.03.2023 Date on which reserved for order/judgment : 03.01.2024 Date of pronouncement of order/judgment : 03.01.2024 Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 1/16 Order on the application seeking Leave to Defend the suit
1. The defendant has moved an application for seeking unconditional leave of the court to defend the claim raised by the plaintiff for seeking recovery of Rs. 11,83,000/-.
2. The brief factual recapitulation leading to filing of the present suit u/o 37 CPC would be relevant.
3. As per plaint, the defendants are the first class legal heirs of deceased Sanjay Kumar Diman ( hereinafter referred to as 'the deceased'). It is averred in the plaint that the plaintiff had cordial and friendly relations with the deceased who was a government servant and was working on the post of Section Officer in Income Tax Department. It is further averred that the deceased has left behind first class legal heirs i.e. his wife Simmy Dhiman ( defendant no. 1), two sons i.e. Yash Dhiman ( defendant no. 2) and Veer Dhiman.
4. It is further averred by the plaintiff that on 09.02.2020, the deceased approached the plaintiff and asked him for financial help of Rs. 11,50,000/- for the studies of his child in abroad. Accordingly plaintiff gave Rs. 11,50,000/- in cash as a friendly loan to the deceased subject to the condition that deceased will repay the same within eight months i.e. by 9.10.2020.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 2/16
5. It is further averred by the plaintiff that the deceased, in discharge of his legal liability, had issued three post dated cheques to the plaintiff i.e. cheque bearing no. 816617 dated 30.10.2020 for an amount of Rs.3,50,000/-, cheque bearing no. 000034 dated 20.11.2020 for an amount of Rs.3,50,000/- and cheque bearing no. 000035 dated 20.12.2020 for an amount of Rs. 4,50,000/-.
6. It is further averred by the plaintiff that on presentation of cheque bearing no. 816617 dated 30.10.2020 for realization and enchashment, the same was dishonoured with the remarks as "Funds Insufficient" vide return memo dated 13.01.2021. The plaintiff intimated this fact to the deceased and the deceased assured the plaintiff by way of self attested affidavit about the remaining two cheques. Thereafter, plaintiff presented another cheque no. 000034 dated 20.11.2020 but the said cheque also returned as unpaid being dishonoured with the remarks 'Funds Insufficient". Plaintiff again contacted the deceased regarding the said dishonour of the above said cheque and deceased with a sole malafide intention to cause wrongful loss to the plaintiff assured him that the said cheque will be definitely honoured by 20.12.2020. On the assurance of the deceased, plaintiff again presented the said cheque which was again returned unpaid with remarks as "funds Insufficient". Thereafter plaintiff presented cheque no. 000035 dated 20.12.2020 but the same was also received back unpaid with same remarks and on the assurance of the deceased, plaintiff again presented the above said cheque and which was Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 3/16 again received back unpaid as dishonoured with the remarks as "Funds Insufficient".
7. It is further averred by the plaintiff that thereafter, plaintiff got served a legal notice for one cheque under section 138 of NIAct to the deceased on 16.01.2021. The said notice was duly served and delivered to him on 22.01.2021. Thereafter deceased sent reply dated 05.02.2021 of the legal notice sent by plaintiff wherein he admitted his cheque liability but still did not pay anything within the given period of time.
8. It is further averred by the plaintiff that the deceased failed to return the said amount to the plaintiff till date despite repeated requests and demands made to him by the plaintiff and thereafter the plaintiff filed three separate complaint cases for each cheque bearing CC No. 515/2021, CC No. 518/2021 and CC no. 519/2021 against the deceased but during the pendency of those complaints, the deceased expired on 11.12.2021, therefore, the above said complaint cases under section 138 NI Act were abated.
9. It is further averred by the plaintiff that defendants are the legal representatives of the deceased and liable to pay said loan amount which was taken by the deceased.
10. It is further averred by the plaintiff that due to non-payment of loan amount by the defendants, the present suit has been filed for recovery of Rs. 11,83,000/- against the defendants jointly and severally.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 4/16
11. Summons of the suit under order 37(2) CPC in the form 4 as prescribed in Appendix-B was issued to the defendants but the summons were unserved, however on 19.04.2023, the defendants put their appearance in court and submitted that they have received the summons on 17.04.2023 and thereafter on 26.07.2023, summons for judgment were handed over to the proxy counsel appearing on behalf of the defendants and thereafter on 04.08.2023, the defendant no. 1 filed the present application for leave to defend the case alongwith her affidavit.
12. In the application seeking leave to defend, it is contended by the defendant no. 1 that the plaintiff has filed a false and frivolous suit against them.
13. It is contended by defendant no. 1 that there is no privity of contract between the plaintiff and the defendants and plaintiff has neither any locus to file the present suit nor any documentary evidence to suggest any liability of the defendants to repay the loan amount to the plaintiff. It is contented that plaintiff has misguided this court by filing a false, frivolous and baseless suit.
14. It is further contended by defendant no. 1 that during the life time of the deceased, the plaintiff neither visited their house nor the defendants have ever seen the plaintiff. It is further contented that plaintiff has not mentioned the correct facts and not disclosed any ground for maintainability of the present suit.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 5/16
15. It is further contended by defendant no. 1 that as per her knowledge, the deceased never took any kind of loan from the plaintiff and in the plaint, the plaintiff nowhere mentions the source of huge cash amount which is allegedly given to the husband of defendant no. 1 by the plaintiff.
16. It is further contended by defendant no. 1 that during his life time, the deceased never disclosed to defendants of taking of any loan amount from plaintiff and handing over/issuance of cheques to the plaintiff or anyone. It is further contended that the cheques in question might have been obtained by the plaintiff from the deceased by playing fraud with the deceased. It is further contended that defendants have no concern with the alleged loan and are not liable to pay any kind of amount/money to the plaintiff.
17. The Plaintiff has filed reply to the above said application and took preliminary objections that the application under reply, is false, groundless and vexatious and same has been filed to delay the disposal of the suit and to cause harassment to the plaintiff and to avoid the payment of loan amount to the plaintiff. It is further stated that the application on the face of it, is groundless and is not maintainable.
18. On merits most of the contents of the application has been denied as wrong and it is averred that defendants have no plausible defense Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 6/16 and defendants are not entitled to any unconditional leave to defend the suit. Plaintiff has also reiterated the averments mentioned in the plaint.
19. Written submissions have been filed on behalf of plaintiff and defendant. Plaintiff has also filed some judgments.
20. I have heard the arguments from both sides and have gone through the entire case file and have carefully considered the written submissions as well as judgments relied upon by the plaintiff.
21. In the present suit, the plaintiff has based his present claim on the basis of the three cheques i.e. cheque bearing no. 816617 dated 30.10.2020 for an amount of Rs.3,50,000/-, cheque bearing no. 000034 dated 20.11.2020 for an amount of Rs.3,50,000/- and cheque bearing no. 000035 dated 20.12.2020 for an amount of Rs. 4,50,000/-.
22. Ld. Counsel for the plaintiff has argued that plaintiff is known to the deceased Sanjay Kumar Dhiman since long and plaintiff was having friendly relations with the deceased and deceased needed money for the study of his child in abroad and being his friend, plaintiff advanced him friendly loan of Rs. 11,50,000/- and after obtaining loan, the deceased issued three post dated cheques i.e. bearing no. 816617 dated 30.10.2020 for an amount of Rs.3,50,000/-, cheque bearing no. 000034 dated 20.11.2020 for an amount of Rs.3,50,000/- and cheque bearing no. 000035 Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 7/16 dated 20.12.2020 for an amount of Rs. 4,50,000/- in favour of plaintiff which were got dishonored on being presented for encashment. He further argued that thereafter plaintiff issued legal notice to the deceased and the said notice was duly received by the deceased and the deceased sent reply dated 05.02.2021 wherein he had admitted his cheque liability to the extent of amount of Rs. 8 lakh. He further argued that deceased had also admitted his liability of Rs. 8 lakh in the complaint case in the court of Ld. M.M. Ms Chhaya Tyagi, on 30.11.2021. He further argued that plaintiff has sufficient capacity to give the amount in cash to the deceased. He further argued that the defense taken by the defendants are a sham and false defense. He further argued that leave to defend application of the defendant may be dismissed and judgment may be passed in his favour.
23. Ld counsel for the defendant argued that there was no friendly relations between deceased and plaintiff. He further argued that plaintiff never visited the house of the deceased during the life time of the deceased and the defendants have never seen the plaintiff during the life time of the deceased. He further argued that the deceased had not obtained a sum of Rs. 11,50,000/- from the plaintiff and the cheques in question might have obtained by the plaintiff by playing fraud with the deceased.
24. Ld. Counsel for the defendants further argued that there is no privity of contract between the plaintiff and the defendants and the plaintiff has no documentary evidence to suggest any liability towards the Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 8/16 defendants. He further argued that plaintiff has not even aware of the correct name of defendant no. 1. He further argued that as per the guidelines and instructions issued by the RBI no cash transaction is permissible or valid beyond a sum of Rs. 20,000/- therefore the story of the plaintiff to advance loan of Rs. 11,50,000/- in cash to the deceased is not believable.
25. It is further contended by the defendant that the suit filed by the plaintiff involves adjudication of the substantial issues which can only be decided after conducting full trial of the present suit. The aforesaid facts disclose triable issues and are sufficient to entitle the defendant to an unconditional leave to conduct the present suit. It is also submitted that the present suit is not in accordance with the mandatory provisions of order 37 rule 2(1) CPC, hence the same is not maintainable.
26. The foremost point to be decided is that whether suit under order 37 CPC is maintainable against the L.Rs of the deceased. I have perused the judgments of case titled as Sanjeev Jain Vs Rajni Dhingra & Ors decided on 19.12.2018 and case titled as Sarvesh Bisaria Vs Hari Om Anand, in CS(OS) 160/2020 & I.A.5214/2020, wherein, the Hon'ble High Court of Delhi has held that suit under order 37 CPC is maintainable against the L.Rs of the deceased.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 9/16
27. I have perused judgment of Hon'ble Supreme Court in IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd 2017 (1) SCC 568, wherein Hon'ble Supreme Court has restated the principles governing the grant of leave to defend a Summary suit as per amended Order XXXVII Rule 3 of the Code of Civil Procedure. These are as under: -
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;
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;
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 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;
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 Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 10/16 requires.
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;
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.
28. I have perused the certified copy of the reply dated 05.02.2021 sent on behalf of the deceased. In the said reply, the deceased has contended that he had taken friendly loan of Rs. 8 lacs from the plaintiff in February, 2020 and at that time he had handed over three signed cheques to the plaintiff towards the security deposit. As per above reply, the deceased has admitted the taking of friendly loan and handing over signed cheques to the plaintiff. The contention of the deceased is that the plaintiff has filled a greater amount of Rs. 11,50,000/- instead of Rs. 8 lacs in the signed cheques handed over by him to the plaintiff.
29. I have also perused the certified copy of the order sheet dated 30.11.2021 of Ld. M.M. Ms Chhaya Tyagi, wherein accused was present in person with his counsel in the court and the ld. Counsel for accused had Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 11/16 admitted the cheque liability to the extent of Rs. 8 lacs.
30. Section 20 of the Negotiable Instruments Act states that where one person signs and delivers to another a paper stamped in accordance with the law related to Negotiable Instruments then in force in India and either fully blank or having written thereof and incomplete Negotiable Instrument, he thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon it a Negotiable Instrument, for any amount specified therein and not exceeding the amount covered by the stamp.
31. The contention of the deceased is that he had not taken loan of Rs.11,50,000/- rather had obtained loan only of Rs. 8 lakh from the plaintiff but to prove this contention the deceased has not referred any evidence either documentary or oral, regarding obtaining loan only of Rs. 8 lacs from the plaintiff and not of Rs.11,50,000/-. The deceased even has not filed any complaint to the police or in the court allegedling that his cheques have been misused by the plaintiff by filling greater amount of Rs. 11,50,000/- instead of Rs. 8 lacs. The deceased as well as defendants has not referred any evidence to prove that grater amount has been filled by the plaintiff in the cheques. The contention of the deceased is not believable and does not hold any substance.
32. The defendant no. 1 has denied the taking of any loan amount Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 12/16 from the plaintiff even she contended that she does not know the plaintiff whereas the deceased had admitted the taking of friendly loan to the extend of Rs. 8 lacs from the plaintiff and also admitted the issuance of above said three signed cheques to the plaintiff.
33. The defendant no. 1 has not mentioned any documentary or oral evidence by way of which defendant no. 1 will prove the fact that the deceased had not taken any loan amount or had taken loan amount only of Rs. 8 lacs from the plaintiff.
34. It is also pertinent to mention that the deceased during his life time admitted the handing over of above said three cheques to the plaintiff and also admitted his signatures on the above said cheques. The only defence of the deceased was that he had taken loan of Rs. 8 lacs and the plaintiff has filled the cheques with greater amount of Rs. 11,50,000/- but this defence of the deceased does not appear to be plausible and if plaintiff wanted to fill the greater amount then he would have filled the said greater amount in one cheque only and not cumulatively in three cheques, if he wanted to misuse the said cheques. Moreover, if the plaintiff had misused the said cheques then the deceased would have made complaint against the plaintiff to the police or in the court for misusing the said cheques. The defence taken by the deceased in the reply of legal notice is not probable and not have any substance.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 13/16
35. Section 118 Negotiable Instruments Act raises a presumption of consideration that every negotiable instrument was made or drawn for consideration, until the contrary is proved. Section 139 of Negotiable Instruments Act states that it shall be presumed unless the contrary is proved that the holder of the cheque received the cheque of the nature refer to section 138 for the discharge, in whole or in part, of any debt or any liability. In this case the contentions of the deceased was that he gave the said cheques as a security deposit but said contention will not defeat the presumption u/s 118(a) and 139 of NI Act,1881. In this case defendants have not been able to rebut the said presumption. Thus the defendants, who are the class I legal heirs cannot escape the liability by plainly denying any liability with the plaintiff.
36. Having heard the Ld. Counsels and after considering the facts and circumstances of the present suit, it is worthwhile to mention that the pleas taken by the defendant no. 1 does not seem to be bona fide and the defendant no. 1 has failed to raise any substantial defence or triable issues which may need investigation in trial. At best only a moon shine defense has been put forth by defendant no. 1 the defence of defendant no. 1 falls in point 5 of Judgment IDBI Trusteeship Services Ltd. (Supra). In view of the settled principles, no case for grant of leave to defend is made out. The present application has no merit and accordingly the same stands dismissed.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 14/16
37. Defendant no. 2 has not filed any leave to defend application. Leave to defend application filed by the defendant is only signed by defendant no. 1 and it is accompanied by an affidavit of defendant no. 1 only.
38. Since the leave to defend application has been dismissed, the plaintiff is entitled for a decree.
39. Plaintiff has claimed Rs.11,83,000/- i.e. Rs.11,50,000/- as principal amount and Rs. 33,000/- cost of three legal notices sent to the deceased. The court is not inclined to grant amount of Rs. 33,000/- which is alleged to be the cost of three legal notices sent to the deceased. Plaintiff has not claimed any interest on the above said amount. However, this court is also inclined to grant interest on the aforesaid amount and in the absence of any agreement between the parties, Section 34 CPC empowers the court to grant interest in a money decree as the court deems reasonable. In view of Section 34 CPC, it would be appropriate to grant simple interest @ 6% p.a. to the plaintiff on the aforesaid amount.
40. The suit is hereby decreed in favour of plaintiff and against defendant for a sum of Rs.11,50,000/- (Rupees Eleven Lakhs and Fifty Thousands only) alongwith interest @ 6% p.a. from date of filing of the suit till the realization of the amount.
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 15/16
41. It is clarified that this Court has not gone into the issue as to whether the LRs or any of their assets can be attached or sold. The defence available to the LRs under Section 52 CPC shall continue to be available to them in any execution of the present decree.
42. Cost of suit is also awarded in favour of the plaintiff.
43. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Digitally signed
SHIV by SHIV KUMAR
Announced in the open court KUMAR Date: 2024.01.04
16:24:07 +0530
on 3rd January, 2024 (SHIV KUMAR)
Addl. District Judge-02
(West), Delhi
Civ DJ No. 204/23 Krishan Kumar V. Ms Simmi Dhiman & Ors. 16/16