Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
SURAJ KUMAR SIRVAIYA ..... Appellant
Through: Mr. Sunil Kumar, Advocate.
Through: Mr. Sudhir Kumar Sharma and Mr.Pranjal Rai, Advocates.
The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. The appellant (original defendant) is assailing the impugned judgment and decree dated 01.09.2022 passed by the learned Additional District Judge-02 (Shahdara), Karkardooma Courts, Delhi in CS No.370/2019 titled as Prashant Paliwal Versus Suraj Kumar Sirvaiya.
2. Vide the impugned judgment, the learned Trial Court was pleased to decree the suit filed by the respondent herein (original plaintiff) under Order XXXVII of Code of Civil Procedure, 1908 for recovery of an amount of Rs. 26,00,000/- alongwith pendent lite and future interest @ 12% per annum.
3. With the consent of the parties, the present appeal is taken up for final disposal. Facts relevant for disposal of the present appeal
4. It is the case of the respondent in the suit that the parties were known to each other since 2010-11. The appellant introduced himself as a Government employee and his wife as a teacher in Government School. The appellant gave the impression that besides his job, he is into the business of investment of money and can earn good returns for the respondent.
5. The appellant further promised that he would pay fixed monthly profit on the said investment and at the end of the investment scheme, he would return entire principle amount to the respondent. The appellant induced the respondent to invest money with him. Based on the repeated requests and assurances of the appellant, the respondent agreed to invest a sum of Rs. 5 lakhs to the appellant. The respondent transferred a sum of Rs. 5 lakhs on 29.11.2013 through RTGS from the account of his wife to the account of Ms. Geeta Verma, wife of the appellant.
6. As promised by the appellant, he paid fixed profit of Rs. 22,500/- on 15.01.2014, 15.02.2014, 20.03.2014 & 17.05.2014 through RTGS in the account of wife of the respondent towards fixed monthly profits. The appellant also refunded the principal amount of Rs. 5 lakhs to the wife of respondent through two cheques amounting to Rs. 2,50,000/- each at the end of the said scheme period. Since the appellant fulfilled his promise, a relationship of trust was established between the parties.
7. It is the case of the respondent that he further invested an amount of Rs. 23 lakhs with the appellant. The appellant issued various post dated cheques towards security of the principle amount.
8. It is also the case of the respondent that the parties reduced the term of their business deal in the form of Memorandum of Understanding (MoU) dated 18.05.2015, 15.09.2015 & 01.02.2016.
9. It is further the case of the respondent that the appellant started defaulting in paying the monthly fixed profit. Some of cheques submitted by the appellant towards refund of the principle amount, were returned by the bank with the remark “funds insufficient”. The respondent contacted the appellant and informed him about return of the cheques and asked him to refund the principle amount with the outstanding fixed profit. However, the appellant started avoiding the respondent. Later, with the intervention of common friends, the parties further negotiated and arrived at a settlement for an amount of Rs. 26 lakhs towards the entire liability of principle amount and fixed profit. Hence, the appellant issued three post dated cheques totalling Rs. 26 lakhs in favour of the respondent. On presentation, all the three cheques were returned by the bank with the remark “funds insufficient”. Contacting the appellant, he assured to honour the commitment and make payments through RTGS/ demand draft, however, he failed to honour his promise. The respondent issued legal notice dated 08.11.2017. After the receipt of the said legal notice, the appellant deposited Rs. 34,500/- through RTGS on 30.11.2017 towards part payment, though the balance amount still remain unpaid. Hence, the respondent initiated proceedings under Section 138 of the Negotiable Instruments Act and against the appellant (vide C.C.No. 4494/2017). The appellant filed the present suit under Order XXXVII of Civil Procedure code, 1908 against the respondent for the outstanding amount. The appellant entered appearance and filed his application for leave to defend before the learned Trial Court.
10. It is the case of the appellant that he never promised any monthly fixed return on the investment made by the respondent. According to the appellant, he issued post dated cheques to the respondent as security for the amount invested. The appellant further stated that the respondent had earlier taken security cheques worth Rs. 88.34 lakhs on eight different occasions with the assurance that he will not present the said cheque for encashment. The appellant denied the execution of Memorandum of Understanding (MoU) between the parties.
11. It is the case of the appellant that respondent forced the appellant to sign blank papers and later they were converted into the alleged Memorandum of Understanding (MoU) without the consent or knowledge of the appellant. The appellant further points out that in the said alleged Memorandum of Understanding (MoU), the date were mentioned by the respondent without the presence of both the witnesses.
12. It is further the case of the appellant that he has already returned Rs.26,14,500/- to the respondent towards complete principle amount. According to the appellant, he paid Rs. 7,19,500/- through online transfer, Rs. 13,95,000/- through cash. In addition, another sum of Rs. 5 lakhs was paid to the respondent in cash at his residence on the eve of “Karwa Chouth” in the year 2017. The learned Trial Court examined the rival contentions of both the parties and vide the impugned judgment, dismissed the applicant’s application for leave to defend. The relevant port of the impugned judgment, inter alia, reads as follows:-
13. This Court heard the arguments advanced by both the parties and examined the documents placed by the appellant on record. Before adverting to the rival contentions of the parties, it is important to examine the law laid down by the Hon’ble Supreme Court in IDBI Trusteeship Services Ltd Vs Hubtown Ltd reported as (2017) 1 SCC 568 as under:- “18. Accordingly the principles stated in paragraph 8 of Mechelec's case will now stand superseded, given the amendment of Order XXXVII Rule 3, and the binding decision of four judges in Milkhiram's case, as follows: a. 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; b. 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; c. 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; d. 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. e. 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; f. 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."
14. Learned counsel for the appellant further submits that in the present case, the appellant has raised triable issues and has never admitted his liability towards the respondent.
15. A perusal of the record shows that appellant admitted the liability of Rs. 26 lakhs towards the respondent. However, it is the case of the appellant that he had already returned Rs. 26,14,500/- to the respondent. According to the appellant, he paid Rs. 7,19,500/through online transfer and balance through cash. The appellant denied execution of the Memorandum of Understanding (MoU) between the parties.
16. It is further the case of the appellant that the respondent had taken security cheques worth Rs. 88.34 lakhs on eight different occasions with the assurance that he will not present the said cheque for encashment. This Court is of the considered view that these are the disputed questions of fact, which can be proved effectively only after leading the evidence. The learned Trial Court also noted the well settled principle of law, i.e. ‘grant of leave to defend with or without condition is the ordinary rule and denial of leave to defend is an exception’. However, the learned Trial Court failed to appreciate that the appellant has a defence and in order to prove the said defence, evidence is required. In the present case, the appellant has raised a triable issue.
17. This Court is of the view that the defence raised by the appellant is plausible but improbable and hence, the appellant is entitled for conditional leave.
18. Hence in view of the detailed discussion hereinabove, the impugned judgment is set aside. The appellant is entitled to defend the suit filed by the respondent on deposit of Rs. 15 lakhs with the Registrar General of this Court within a period of 8 weeks. Upon such deposit, the Registry is directed to put the said amount in an interest bearing FDR with auto renewal facility.
19. With these observations, the appeal is allowed and all the pending applications are disposed of. The matter is remanded back to the learned Trial Court for further proceedings. No order as to costs.
20. Parties are directed to appear before the learned Trial Court on 05.12.2022.
21. If the appellant fails to deposit the amount of Rs. 15 lakhs within the stipulated time, the respondent will be free to initiate proceedings against the appellant in accordance with law.
GAURANG KANTH, J NOVEMBER 24, 2022