S.S. Thapar v. L.R. Verma

1. This appeal is preferred by the appellant/defendant against the judgment and decree dated 16.08.2019 passed by the learned Additional District Judge-06/South-East District, Saket Courts, New Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No.10039/2016 whereby the suit of the respondent/plaintiff filed under Order XXXVII CPC for recovery of Rs.85.00 lac was decreed for Rs.74.00 lac on failure of the appellant to deposit the amount in learned Trial Court as ordered while allowing the leave to defend application of appellant.

2. The brief facts are:- a)the respondent filed summary suit for money recovery under Order XXXVII CPC on the ground the appellant and his son Pankaj Thapar (who generally resides in United Kingdom) had 2019:DHC:6061 approached the respondent and represented the appellant was running an export business of Indian garments under the name and style of M/s.AAA Overseas Handicrafts/AAA Handicrafts Overseas – a proprietorship firm which exports garments to Pankaj Thapar at England, who retail such garments in England; b) the appellant since was in financial need had requested the respondent to invest in such export business in return of some benefits. Both the father and son posed a rosy picture of their entire business and hence the respondent invested a sum of Rs.30.00 lac in the manner as given in para No.5 of plaint; c) the appellant did not repay the amount as also the profits and when threatened to lodge legal action, at the behest of the appellant, his son Kapil Thapar issued a demand promissory note in the sum of Rs.30.00 lac in favour of the respondent. Upon execution of such documents in December 2004 and January 2005, the appellant and her son again represented the respondent to invest some more amount in the business and on their inducement the respondent invested Rs.44.00 lac with effect from January 2005 till February 2006 in the manner as alleged in para No.11 of the plaint; d) after the receipt of the amount of Rs.74.00 lac in total, the appellant started avoiding the respondent and after great persuasion the appellant had issued two cheques – dated 21.03.2005 and 25.05.2005 both for Rs.25.00 lac each both drawn on Punjab National Bank, Nehru Place, New Delhi as well as New Custom House, IGI Airport, New Delhi from the account of his firm as AAA Overseas Handicrafts; e) both the cheques were dishonoured on presentation; thus a legal notice dated 21.10.2005 was issued, which was ignored and hence this suit under Order XXXVII CPC was filed on the basis of such cheques.

3. An application for leave to defend was filed by the appellant wherein the appellant alleged the respondent had given surety for the appellant for some bank loan transaction and had given title deeds of his house and when the appellant could not repay the loan, the respondent paid Rs.10.00 lac to the bank to clear the loan of the appellant and got signed from him various documents, including subject cheques etc, which the respondent has now misused.

4. The parties settled their disputes before Delhi Mediation Centre, Tis Hazari Courts, Delhi vide a settlement agreement dated 30.09.2009 wherein both the parties had agreed as follows:-

5. Admittedly, Rs.7.00 lac only was paid by the appellant to the respondent, hence conditional leave to defend was granted by the learned Trial Court to the appellant to contest this suit on his depositing an amount of Rs.34.00 lac. The relevant portion of the order dated 28.03.2019 of the learned Trial Court is as under:-

6. The appellant challenged the order dated 28.03.2019 in Civil Miscellaneous (Main) No.880/2019 before this Court but such petition was also dismissed by this Court vide an order dated 28.05.2019 which read as under:-

the Court in Raj Duggal(supra) also granted conditional leave to defend.

8. In the facts and circumstances aforesaid, the petitioner has not made out a case for exercise of jurisdiction of this Court under Article 227 of the Constitution. The petition is, therefore, dismissed."

7. Despite dismissal of the CM(M) No.880/2019 the appellant did not deposit the required amount with learned Trial Court, hence per impugned judgment dated 16.08.2019, the suit of the respondent was decreed. The relevant portion of the impugned judgment notes:-

8. In this appeal, the appellant once again is trying to raise issues raised by him in his application for leave to defend and consequently in CM (M) No.880/2019. The appellant cannot be allowed to re-agitate same issues again. All that the appellant could have done in these circumstances was to find solace in Order XXXVII Rule (3) (6) (b) CPC by alleging what prevented him to deposit Rs.34.00 lac in time. Order XXXVII Rule (3) (6) (b) CPC notes:- “Order XXXVII Summary Procedure:- (3) Procedure for the appearance of defendant:-- (1) to (5) xxxx xxxx (6) At the hearing of such summons for judgment:- (a) xxx (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.”

9. Thus, in this appeal, the appellant could have only pleaded the circumstances which debarred him to deposit Rs.34.00 lac, as directed vide order dated 28.03.2019 of granting conditional leave to defend to him, lest there was no other alternative with the learned Trial Court except to decree the suit, which rightly has been done so vide the impugned judgment. The only other contention raised is the respondent did not file any proof of encashment of cheques stated in paragraph Nos.[5] & 11 of the plaint. Such plea also ought to have been raised in the application for leave to defend. It cannot be raised now.