MAS Project Engineers Pvt Ltd v. Sushil Kumar Agrawal & Anr

1. Vide impugned order September 04, 2014, lA No.17871/2012 filed by the appellant under Order XXXVII Rule 3(5) of the Code of Civil Procedure praying for leave to defend the suit filed by the first respondent be granted has been dismissed and as aresult adecree has been passed in the suit as prayedfor in the plaint.

2. On July 23, 2015 this Bench had passed the following order in the appeal:- "1. Members of the Bar are abstaining from work today. RFA(OS) 95/2014 Page 1of[5] 2015:DHC:12016-DB While re-notifying the matter we direct learned proxy counsel who appear today to inform learned counselfor theparties that on the next date ofhearing an authorisedpersonform the side of the appellant as also the respondents would appear in person to answer thefollowing query:- Whether the respondent maintains an account with Punjab National Bank. The representative of the appellant would bring the bank statement ofaccount of the appellant from which it claims RTGS transmission of ^5,06,247/- from its account No.PUNBOlllOOO.

2. Re-notify for July 27, 2015."

3. Today, the respondent who appears in person confirms having received ^25,06,247/- (Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) through RTGS transfer but claims that ^34,00,000/- (Rupees Thirty Four Lacs only) was additionally due and payable by the appellant to him. 4, In that view of the matter the appellant would be entitled to unconditional leave to defend for the reason the case of the first respondent, who is carrying on business as the sole proprietor ofthe second respondent, is that the appellant owed money to him for having purchased galvanised iron and copper earthing material. In para 2ofthe plaint ithas been pleaded that ?27,90,223.16 (Rupees Twenty Seven Lacs Ninety Thousand Two Hundred Twenty Three and Sixteen paise only) was due. In para 3 of the plaint it has been pleaded that to liquidate the amount due, the appellant handed over two cheques, one bearing No.068233 dated September 26, 2011 in sum of T25,06,247/- (Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) and the other bearing No. 066498 dated October RFA(OS) 95/2014 Page 2of[5] 05, 2011 in sum of ^2,60,483/- (Rupees Two Lacs Sixty Thousand Four Hundred Eighty Three only). In para 4 it is pleaded that when presented both the cheques were dishonoured. It is further pleaded thereafter that the appellant surreptitiously got credited ^2,60,483/- (Rupees Two Lacs Sixty Thousand Four Hundred Eighty Three only) in the account of the respondent and claimed adjustment towards cheque No.066498. Inpara 12 of the plaint it is pleaded that the respondent was entitled to ^25,29,746/- (Rupees Twenty Five Lacs Twenty Nine Thousand Seven Hundred Forty Six only) but by way of abandoned precaution was relinquishing ?23,493/- (Rupees Twenty Three Thousand Four Hundred Ninety Three only) because it was suing for realization of the sum relatable to cheque No.068233 dated September 26, 2011 in sum of ^25,06,247/-(Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only).

5. Inpara 13 ofthe plaint ithas been clearly pleaded that the suit under Order XXXVII of the Code of Civil Procedure is maintainable because the cause of action is the cheque bearing No.068233 dated September 26, 2011 in sum of ^25,06,247/- (Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) being dishonoured and payment not being made in spite ofnotice served.

6. Seeking leave to defend the appellant pleaded that ithas transferred a sum of^25,06, 247/-(Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) to the account ofthe respondent No.l through RTGS. Documents were filed establishing said transfer.

7. Inthe reply to the appellant's application seeking leave to defend the suit, the respondent denied that a sum of ^25,06,247/- (Rupees Twenty Five Lacs Six ThousandTwo HundredForty Seven only) was creditedto its RFA(OS) 95/2014 Page 3of[5] account byRTGS.

8. Declining leave to defend the learned Single Judge has held that not a single document has been filed by the appellant to substantiate its claim that RTGS payment was made in respect of the dishonoured cheque, a finding of fact prima-facie recorded by the learned Single Judge, which is contrary to the record of the suit because we find that the appellant has filed a document showing RTGS transfer. In any case, faced with the order dated July 23, 2015 the respondent admits having received ^25,06,247/- (Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) through RTGS, but claims that more amount is due to it.

9. Suffice it to state that the cause of action on which the suit has been filed isthe cheque bearing No.068233 dated September 26, 2011 insum of ^25,06,247/- (Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) being dishonoured and payment not being made in spite of notice served. This assertion in the reply to the appellant's application seeking leave to defend is incorrect.

10. Whether or not the suit would survive would have to be decided by the learned Single Judge, but at the stage at which the appeal has to be decided i.e. the stage of considering appellant's application seeking leave to defend, it has to be held that the appellant is entitled to unconditional leave to defend the suit.

11. The appeal is allowed. Impugned order and decree dated September 04, 2013 is set aside. lA No.17871/2012 filed by the appellantseeking leave to defend the suit is allowed. The appellant is granted unconditional leave to defend.

12. The suit is restored for adjudication on merits. It would be listed for RFA(OS) 95/2014 ^ Page 4of[5] directions before the learned Single Judge as per Roster assignment on August 24, 2015. The appellant shall file the written statement within 30 days reckoned from today.

13. The appellantshall be entitledto costs in the appeal for the reason the respondent falsely replied to the application seeking leave to defend that it had not received ?25,06,247/-(Rupees Twenty Five Lacs Six Thousand Two Hundred Forty Seven only) through RTGS transfer, butintheappeal admits having received said amount. The costs shall bepaid by the first respondent. CM No.9887/2014 Dismissed as infructuous. JULY 27, 2015 skb k ^^73/ RFA(OS) 95/2014 (PRADEEP NAND JUDGE (MUKTA GUPTA) JUDGE a I ^ « Page 5 of[5]