Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
DEEPAK KUMAR ..... Appellant
Through: Mr. Jai Prakash, Advocate
Through: Respondent in person
1. Mr. S. Chakraborty, caveator / respondent appears in person.
2. Accordingly, the caveat stands discharged CM APPL. 50025/2022 & CM APPL. 50026/2022 (Exemption)
3. Exemption allowed, subject to all just exceptions.
4. Applications stand disposed of. RFA 588/2022 & CM APPL. 50024/2022 (Stay)
5. The appellant (original defendant) in the present appeal is assailing the orders:-
(i) the impugned judgment and decree dated 01.11.2022 passed by learned Additional District Judge -03 in CS No. 73 of 2022 titled as S. Chakkrovorty Vs. Deepak Kumar.
(ii) the impugned order dated 27.08.2022 passed by learned
6. Vide the impugned order dated 27.08.2022, the learned Trial Court was pleased to grant conditional leave to the appellant to defend the summary suit filed by the respondent (original plaintiff). The learned Trial Court had imposed the condition of deposit of an amount of Rs.5,75,000/- in the form of FDR in the name of the learned Trial Court by 27.09.2022. However, the appellant failed to deposit the said amount within the time granted by the learned Trial Court and hence vide impugned judgment and decree dated 01.11.2022, the learned Trial Court was pleased to decree the suit filed by the respondent against which the present appeal has been filed.
7. With the consent of the parties, this Court has taken up the present appeal for final disposal. Facts relevant for disposal of the present appeal
8. The respondent filed a suit under Order XXXVII of the Code of Civil Procedure, 1908 against the appellant for recovery of Rs.5,75,000/alongwith pendentilite interest.
9. It is the case of the respondent that he had advanced a friendly loan of Rs.5,75,000/- to the appellant in the month of August, 2018. The respondent further averred that he handed over Rs.5,75,000/- in cash to the appellant at appellant’s own office at 32 Foota Road, Bengali Colony, Mahavir Enclave-I.
10. The respondent further pleaded in the plaint that the appellant had handed over a post dated cheque dated 23.01.2019 bearing NO. 000002 for a sum of Rs.5,75,000/- drawn in favour of respondent and had assured him that the same will be honoured at the time of its presentation.
11. It is further the case of the appellant that in the month of January, 2019, the appellant requested the respondent not to deposit the post dated cheque for encashment. Further, the appellant requested the respondent for granting some more time to arrange the money. In the month of April, at the time when the cheque was about to expire, the respondent asked the appellant for the repayment of the loan advanced by him. The appellant failed to pay the said amount. The respondent in the month of April, 2019 presented the said cheque for encashment, however, the same was returned with the remark “PAYMENT STOPPED BY DRAWER”. Respondent approached the appellant for payment of the loan, however, some time was sought by the appellant for making the repayment. It is the case of the respondent that he did not initiate any action under Section 138 of the Negotiable and Instruments Act under the belief that the appellant will repay the amount. However, even after repeated requests, the appellant did not pay the said amount and the respondent was constrained to file a suit under Order XXXVII of the Code of Civil Procedure, 1908 for the recovery of the said amount. The appellant entered appearance and filed his application for grant of leave to defend. It is the case of the appellant that both the parties are known to each other for past few years. The appellant is engaged in the financial sector and due to his nature of work, he used to keep duly signed cheques in his office so that the same can be used of his staff in his absence.
12. In the month of December, 2018, it came to the knowledge of the appellant that he has lost one such said cheque duly signed bearing No. 000002 dated 23.01.2019. Hence, he lodged a police complaint on 27.12.2018. Further, he issued necessary directions to his bank for the stoppage of payment against the said cheque.
13. It is the case of the appellant that he has not taken any friendly loan from the respondent. It is further alleged by the appellant that the respondent was not having any means to advance such huge amount as friendly loan.
14. The learned Trial Court heard the arguments on leave to defend application and was pleased to grant conditional leave to defend to the appellant by directing the appellant to deposit Rs.5,75,000/- in the form of an FDR in the name of the Court during the time specified by the learned Trial Court.
15. The relevant portion of order dated 27.08.2022 passed by the Trial Court is read as under:- “ I find that the defence of the defendant, though plausible, is improbable because the defendant had not disclosed the complaint made to the PS regarding the missing cheques nor has he placed on record the cheque book out of which the present cheque was stolen, nor has he disclosed as to when he had made the request to his bank for stopping the payment on the cheque. However, at the same time, the loan that was given was in cash and the plaintiff has not disclosed the source of such payment and he has also waited for almost three years from the date of cheque i.e. 23.01.2019 before filing the suit. In such circumstances, where the defence could be plausible but is improbable, the Court can grant conditional leave to defend, such condition can extend to the deposit of the entire disputed amount also. Therefore, in the present case, conditional leave to defend is granted to the defendant on the condition that he deposits an FDR of Rs. 5,75,000/- drawn on a nationalized bank by 27.09.2022 in the name of this Court If the defendant fails to comply with the aforesaid condition within the time specified above, the plaintiff shall be entitled to the judgment forthwith.”
16. However, the appellant failed to deposit the said amount within the time specified by the learned Trial Court. In the meanwhile, the appellant challenged the impugned order dated 27.08.2022 before this Court in CM(M) No. 1165/2022. The said CM (M) No. 1165/2022 was listed before the Court on 02.11.2022. However, despite informing the learned Trial Court about filing of the said application, the learned Trial Court decreed the suit filed by the respondent against the appellant a day before the listing of CM (M) and in view of the judgment and decree, the appellant has withdrawn CM(M) NO. 1165/2022.
17. Learned counsel for the appellant further pointed out that the appellant inadvertently failed to file the police complaint dated 27.12.2018 before the learned Trial Court along with the application for leave to defend. However, the same is filed along with the present appeal as Annexure P-3
18. This Court has perused the complaint dated 27.12.2018 filed by the appellant (Annexure P-3) at Police Station Dabri, New Delhi-110045. In the said complaint, the appellant stated that he has lost his duly signed cheque bearing No. 000002 dated 23.01.2019. The said complaint was bearing the stamp of police station Dabri dated 27.12.2018.
19. As rightly noted by the learned Trial Court, the respondent case is that he advanced friendly loan of Rs.5,75,000/- to the appellant and the same was paid in cash. It is the further case of the respondent that towards the repayment of the loan, the appellant had handed over a post dated cheque dated 23.01.2019 drawn in his favour. However, the appellant is disputing the said fact by stating that he lost his duly signed cheque bearing No. 000002 dated 23.01.2019 from his office and he lodged a police complaint dated 27.12.2018 and instructed his bank to stop the payment qua the cheque.
20. This Court notes that according to the respondent it is a cash transaction. In the plaint, the respondent has not disclosed the specific date when he advanced the said amount. It was also not mentioned whether there was any witness to the said transaction. Respondent has not even disclosed his source of income. The respondent needs to lead evidence to prove that there exist a valid debt between the parties and the cheque bearing No. 000002 dated 23.01.2019 was issued in lieu of the said debt.
21. The Hon’ble Supreme Court of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd., reported as (2017) 1 SCC 568 AIR 2016 SC 5321 has held as under: