Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
AMANDEEP SINGH ..... Appellant
Through: Mr. J.M. Kalia and Mr. Dhruv Kalia, Advocates.
Through:
The hearing has been conducted through hybrid mode (physical and virtual hearing).
C.M. No. 50323/2022 (delay in re-filing)
1. This is an application filed by the appellant seeking condonation of delay of 35 days in re-filing the appeal.
2. For the reasons stated in the application, the application is allowed. The delay of 35 days in re-filing the appeal is condoned.
3. The application stands disposed of. RFA 595/2022 and C.M. No. 50322/2022 (stay)
4. The appellant (original defendant) in the present appeal is challenging the impugned judgment and decree dated 11.07.2022 passed by the learned ADJ-08/West, Tis Hazari Courts, Delhi in Civ DJ 269/18 titled Pradeep Kumar Versus Amandeep Singh.
5. The learned Trial Court, vide order dated 22.09.2021, granted conditional leave to the appellant to defend the suit filed by the respondent (original plaintiff) under Order XXXVII of Civil Procedure Code, 1908 by depositing Rs. 2 lakhs. However, the appellant failed to deposit the said amount and filed review application under Section 114 of Civil Procedure Code, 1908 for modification of order dated 22.09.2021. The learned Trial Curt, vide order dated 04.06.2022, was pleased to dismiss the said review application and granted 15 days time to the appellant to deposit Rs. 2 lakhs. The appellant failed to deposit the said amount and hence, vide the impugned judgment dated 11.07.2022, the learned Trial Court was pleased to decree the suit filed by the respondent herein. Facts relevant for disposal of the present appeal
6. It is the case of the respondent that the parties were known to each other for quite some time and were having friendly relationship with each other. The appellant was in need of money and hence, he approached the respondent for a loan of Rs. 4 lakhs in the month of July, 2014. The respondent advanced a loan of Rs. 4 lakh to the appellant. The appellant agreed to repay the said loan with 18% interest. The appellant also handed over a post dated cheque bearing No. 198308 dated 29.07.2015 drawn on Axis Bank Ltd. Kirti Nagar Branch, New Delhi, for an amount of Rs. 4 lakhs to the respondent towards repayment of the loan. The respondent presented the said cheque for encashment, however, the same was returned with remark ‘account closed’. The respondent informed the appellant about dishonour of the cheque and requested for repayment of the loan. The respondent issued legal notice dated 07.09.2015 and thereafter, initiated proceedings under Section 138 of the Negotiable Instrument Act. The said matter is still pending before the learned Metropolitan Magistrate, Tis Hazari Courts. In order to recover the loan amount, the respondent filed the present suit under Order XXXVII of Code of Civil Procedure,
1908. The appellant filed an application seeking leave to defend.
7. It is the case of the appellant that his father Sh. Sukhdev Singh S/o Sh. Ram Singh took a loan of Rs. 80,000/- from one Sh. Ashok Kumar, R/o Subhash Nagar, New Delhi in and around 2009. Out of the said amount, Rs. 31,000/- was paid in cash and Rs. 49,000/- was paid through cheque of Ms. Nidhi Arora. In order to secure the said loan, father of the appellant handed over the original title documents of his property alongwith few blank cheques of the appellant to one Sh. Subhash Arora and Sh. Pradeep Kumar. Cheque No. 198308 was also one amongst the series which were handed over to Sh. Subhash Arora and Sh. Pradeep Kumar.
8. It is further the case of the appellant that his father repaid the said loan during the year 2012. However, Sh. Ashok Kumar failed to return the original documents to the appellant’s father on the pretext that he has lost the file containing original documents. Sh. Ashok Kumar started asking for more money from the appellant’s father in return of the original documents. Later, Sh. Ashok Kumar expired during 2013-14 period, however, after his death Sh. Subhash Arora started misusing the original cheques lying in the files of late Sh. Ashok Kumar.
9. It is the case of the appellant that Mr. Subhash Arora presented cheque bearing No. 198311 for an amount of Rs. 15 lakhs for encashment which was also returned with the remarks as ‘account closed’. Hence the proceedings under Section 138 of the Negotiable Instrument Act were initiated against the appellant. Thereafter, another cheque bearing No.198312 for an amount of Rs. 19,50,000/- was presented through one Anil Pathaniya at the behest of Subhash Arora/ Nidhi Arora. The said cheque was also returned with the same remark. Cheque bearing NO. 198308 for an amount of Rs. 4 lakhs was presented through the respondent and the same was also returned with the same remark ‘account closed’. It is further the case of the appellant that he responded to the legal notice dated 07.09.2015 vide reply dated 20.09.2015. It is the case of the appellant that he closed his Axis bank account somewhere in 2012 and thereafter, never issued any cheque. It is further the case of the appellant that he never took any loan from the respondent.
10. After considering the application for leave to defend, the learned Trial Court was of the view that the appellant had raised triable issues and hence, vide order dated 22.09.2021, granted conditional leave to defend by depositing Rs. 2 lakhs. The order dated 22.09.2021 reads, inter alia, as follows:-
(d) If the defendant has no defence, or if the defence is shame or illusory or practically moonshine, the defendant is not entitled to leave to defend.
17. Now, let us see whether in the present case, any plausible defence or any triable issue has been raised by the defendant or not, justifying grant of unconditional leave to him.
18. The plaintiff has claimed that the defendant issued the cheque in question towards the repayment of friendly loan of Rs. 4 lacs. On the other hand, defendant in his leave to defend application has mentioned in detail various alleged facts which, if at this stage are taken at their face value, raises pertinent issues for which trial will be required. Not only the evidence of the parties but of bankers of the defendant are required to be examined apart from verifying the authenticity of various documents.
19. Since the defendant has denied the very factum of the loan in question, apart from denying any payments due to the plaintiff, I am satisfied that the triable issues has been raised in the leave to defend application, apart from various legal defences of limitation and maintainability of the suit which have been raised by the defendant.
20. In the light of aforementioned law and discussion, triable issues have been raised by defendant in his leave to defend application. Accordingly, the application filed by defendant is allowed and he is granted leave to defend and to contest the present case subject to him depositing Rs. 2 lacs in the Court within 30 days from today.”
11. The appellant failed to deposit Rs. 2 lakhs within the timeframe granted by the learned Trial Court and filed review application under Section 114 of Civil Procedure Code for reviewing the order dated 22.09.2021. Vide order dated 04.06.2022, the review application was dismissed and 15 days’ time was granted to the appellant to deposit Rs. 2 lakhs. The appellant failed to deposit Rs. 2 lakhs and hence, vide the impugned judgment, the learned Trial Court was pleased to decree the suit filed by the respondent.
12. This Court heard arguments advanced by learned counsel for the appellant. It is the case of the Respondent that he advanced friendly loan of Rs.[4] lakhs to the Appellant in cash and the Appellant handed over him post dated Cheque bearing No.198308 dated 29.07.2015 towards the repayment of loan. Whereas it was the case of the Appellant that his Cheque bearing No. 198308 along with other two cheques having No.198311 and 198312 were given to Mr. Subhash Arora and Mr. Pradeep Kumar in lieu of a transaction between his father and one Mr. Ashok Gupta. After the death of Mr. Ashok Gupta, Mr. Subhash Arora was misusing the said cheques.
13. In this regard, it is relevant to reiterate 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. In the present case, the case of the appellant is that his cheques were misused at the behest of Sh. Subhash Arora. However, no police complaint was filed against Sh. Subhash Arora. It is the appellant’s case that two more cheques of same series were presented to the bank and they were returned with the remark ‘account closed’. However, the appellant failed to lodge any complaint regarding his misusing cheques. In the law laid down by the Hon’ble Supreme Court in IDBI Trusteeship Services Ltd. (supra), this Court is of the view that the defence raised by the appellant is plausible but improbable and hence, the learned Trial Court rightly granted the conditional leave to defend to the appellant. Since the appellant failed to deposit Rs. 2 lakhs, the learned Trial Court rightly decreed the suit in favour of the appellant.
15. This Court finds no illegality or infirmity in the impugned judgment and decree dated 11.07.2022 and hence, the present appeal is dismissed. Pending application is, accordingly, disposed of. No order as to costs.
GAURANG KANTH, J NOVEMBER 22, 2022