Delhi District Court
Usha vs . Renu Massey on 20 July, 2021
CS SCJ 937/19
USHA Vs. RENU MASSEY
IN THE COURT OF MS. NEHA SHARMA, CIVIL JUDGE-01 (SOUTH)
SAKET COURT, NEW DELHI
Civil Suit No :- 937/19
CNR No :- DLST03-001469-2019
Usha ...............Plaintiff
Versus
Renu Massey .............Defendant
SUIT FOR RECOVERY OF RS. 1,05,000/- ALONG WITH INTEREST
ORDER
1. This is the suit for recovery of Rs. 1,05,000/- along with interest @ 24% p.a.
2. It is the case of the plaintiff that the defendant is a friend who approached her on 14.07.18 for a friendly loan of Rs. 1,05,000/- as she was in dire need of money and promised to return the amount within 90 days. Believing the defendant, plaintiff handed over the amount of Rs. 1,05,000/- in cash to defendant on 16.07.18. When the plaintiff requested the defendant to repay the loan amount, the defendant issued a cheque bearing no. 054499 for Rs. 1,05,000/- dated 14.03.19 at New Delhi. Thereafter, upon presentation, the said cheque was returned dishonoured with remarks "funds insufficient" vide return memo dated 18.03.19. Furthermore, the plaintiff apprised the defendant about the same but the defendant did not repay the amount. Thereupon, a legal notice was sent to the defendant on 13.08.19 demanding the payment of Rs. 1,05,000/- but the defendant failed to pay the amount. Hence, the present suit has been filed seeking the relief as mentioned in para no. 1 of the order.
-1-(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 937/19 USHA Vs. RENU MASSEY
3. The defendant filed an application for leave to defend on 18.01.2020. In the application, the contents of the plaint are vehemently denied and it is stated that the suit of plaintiff is not maintainable under Order XXXVII CPC and has been filed without any cause of action. Parties are acquaintances and there was never any relationship or transaction between the parties and the cheque in question was never issued by the defendant. Further, it is stated that the cheque book of the defendant was misplaced and same was intimated to the bank and the present suit has been filed to harass the plaintiff. The legal notice dated 13.08.2019 was never received by the defendant. It is on these grounds that the permission to defend the suit has been sought by the defendant.
4. Plaintiff has relied upon the cheque dated 14.03.2019 bearing no. 054499 of Rs. 1,05,000/- allegedly issued by the defendant to the plaintiff, return memo issued by the bank, legal notice dated 13.08.2019 sent by the plaintiff to the defendant, speed post receipt and the tracking report. Defendant has relied upon the letter dated 19.06.2019 written by the defendant to the bank intimating the bank about the misplacement of her cheque book.
5. No written reply to the application was filed by the plaintiff but the application was orally contested by the Ld. Counsel for Plaintiff who specifically denied the averments of the application with a prayer for its dismissal.
6. Heard the parties. Perused the record. Considered.
7. For adjudication upon the present application, the question to be determined is whether the defendant has raised any triable issue which requires determination upon merits. Defendant has nowhere, in her application for leave to defend, disputed her signature on the cheque. A bald averment has been made that the said cheque has not been issued to the plaintiff and the cheque book of the defendant had been misplaced. In support of her contentions, defendant has placed on record only one document i.e., the letter written to the bank informing -2- (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 937/19 USHA Vs. RENU MASSEY about the misplacement of the cheque book. However, the said letter dated 19.06.2019 written to the bank only mentions about the cheques bearing no. 054488 to 054498 while the cheque number of the issued cheque is '054499'. Further, defendant has stated in her application that plaintiff and defendant are just acquaintances but no explanation has been given as to how a lost cheque would have reached the plaintiff. Moreover, it is noteworthy to mention that in the application for leave to defend there is no reference to any criminal complaint having been filed by the defendant against the plaintiff when she came to know of the presentation of the cheque to the bank. However, this was only orally argued by the Ld. Counsel for defendant but no document has been placed on record to show the same.
8. Besides, defendant has submitted that no legal notice was received by her. However, section 114 of the Indian Evidence Act empowers the Court to draw certain kind of presumption, on the basis of certain established facts. Hence, since the said notice was duly addressed and sent to the defendant on her address mentioned in the affidavit annexed to her application seeking leave to defend, a presumption under section 114 Indian Evidence Act, 1872 can always be drawn against the defendant. Reliance can be placed on judgement of the Hon'ble Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555.
9. As regard the issue as to when should the leave to defend be allowed to the defendant, the Hon'ble Supreme Court in the case of M/s Mechalec Engineers and Manufacturers vs. Basic Equipment Corporation AIR 1977 SC 577 has elaborated the principles as under:-
(i) 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 -3- (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 937/19 USHA Vs. RENU MASSEY sing judgment and the defendant is entitled to unconditional leave to defend.
(ii) If the defendant raises 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 the judgment and the defendant is entitled to unconditional leave to defend.
(iii) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim, the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but, in such a case, the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.
(iv) 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.
(v) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendants on such condition, and there by show mercy to the defendant by enabling him to try to prove a defence.
10. In Sasumorov Enterprises Pvt Ltd vs. Odeon Builders Pvt Ltd, the Hon'ble Delhi High Court held that;
"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. Order XXXVII of the CPC, if so interpreted, will defeat the legislative intent and will make the procedure for disposal of suits of the class intended to be summarily decided, longer rather than shorter. Order XXXVII is concerned with commercial suits, claim wherein is based on documents. A mere denial of the document cannot entitle the defendant to leave to defend. The defendant, in the leave to defend application, is required to plead all surrounding circumstances -4- (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 937/19 USHA Vs. RENU MASSEY concerning the document, to create a doubt as to authenticity of the document. 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."
11. Further, in Versatile Commotrade Private Limited vs. Balraj 2019 SCC On Line Del 6558 it was held that;
"A defendant in an Order XXXVII suit 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 and if fails to do so, cannot be entitled to leave to defend. It was reiterated that if leave to defend suits under Order XXXVII of the CPC were to be granted merely by taking a plea, even if does not inspire confidence owing to lack of particulars and documents, there would be no case in which leave would not be granted owing to the drafting skills of the Advocates for the defendants and disposal of the suits under Order XXXVII of the CPC, instead of being summary, would be lengthier, for having additional issuance of summons for appearance, summons for judgment and filing of application for leave to defend and consideration thereof."
12. In view of the above said settled legal position and the aforesaid discussion, the defence taken by the defendant appears to be a complete sham and in fact, makes the veracity of the plaintiff's case even more probable. In these circumstances, the application for leave to defend is hereby dismissed.
13. Now coming to the averments of the plaint, the same are duly corroborated by the original cheque dated 14.03.19 and return memo dated 18.03.19, legal notice dated 13.08.19, postal receipt and tracking report. The suit instituted on 11.09.19 is also clearly within the limitation period and the court also has the territorial jurisdiction as the defendant resides within the jurisdiction of this court. Therefore, the claim of the plaintiff for Rs. 1,05,000/- is based upon the cheque dated 14.03.19 and hence, the plaintiff is held entitled to the recovery of Rs. 1,05,000/- against the defendant. However, the interest rate of 24% p.a. as -5- (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 937/19 USHA Vs. RENU MASSEY claimed by the plaintiff appears to be exorbitant and without any basis and hence, in the opinion of this court, the interest rate of 6% per annum appears to be reasonable in the opinion of this court in view of the provision of Section 34 CPC. However, the claim of the plaintiff for compensation is not substantiated by any document and interest at the rate of 6% per annum would meet the ends of justice.
14. Consequently, the suit is hereby decreed with costs and defendant is directed to pay Rs. 1,05,000/- to the plaintiff along with the pendente lite and future interest @ 6% p.a. from the date of filing of the suit till the date of realization. Costs of the suit shall be paid by defendant to the plaintiff as per the rules.
15. Let decree sheet be drawn up accordingly.
16. File be consigned to record room after due compliance.
Pronounced through video-conferencing:
Dated: 20.07.2021 Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2021.07.20 17:18:15 +05'30' (Neha Sharma) CJ-01, Saket Courts, South Delhi Note:- This order contains six pages and all the pages have been checked and signed by me.Digitally signed
NEHA by NEHA SHARMA SHARMA Date: 2021.07.20 17:17:49 +05'30' (Neha Sharma) CJ-01, Saket Courts, South Delhi -6- (Neha Sharma) CJ-01/(South) Saket Court/New Delhi