Santosh Bansal v. Paramjeet Singh

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.45598/2017 (for condonation of delay)

2. For the reasons stated in the application, delay of 286 days in filing the appeal is condoned. C.M. stands disposed of.

3. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the defendant in a suit filed 2017:DHC:7823 under Order XXXVII CPC, impugning the judgment of the Trial Court dated 1.12.2016 by which the trial court has dismissed the leave to defend application and decreed the suit filed by the respondent/plaintiff for recovery of Rs.80 lacs.

4. The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of Rs.80 lacs pleading that this amount of Rs.80 lacs was given as loan by the respondent/plaintiff to the appellant/defendant on 7.8.2014. The loan was to be repaid within 12 months but the appellant/defendant failed to adhere to the time schedule. Ultimately on repeated persuasions the appellant/defendant issued four cheques bearing nos.039648 to 039651 all dated 25.7.2016 in the sum of Rs.20 lacs each in the name of the respondent/plaintiff towards repayment of the loan amount. The cheques however were dishonoured on account of insufficient funds and hence the suit.

5. The contention of the appellant/defendant in the leave to defend application was that in fact it was the respondent/plaintiff who had approached the appellant/defendant for loan and the appellant/defendant expressed inability to provide any loan but on account of persuasions of the respondent/plaintiff the appellant/defendant handed over to the respondent/plaintiff one cheque of the sum of Rs.500/- bearing no.039645 dated 16.1.2015. The appellant/defendant pleads that she however later found that four cheques from her cheque book were missing and therefore she gave intimation to the police as well as to the bank. It was pleaded that the four cheques which were missing are in fact the four cheques on the basis of which the respondent/plaintiff has filed the subject suit.

6. The respondent/plaintiff denied the case set up of the appellant/defendant in the leave to defend application by stating that the respondent/plaintiff did not receive any cheque of Rs.500/- and that the four dishonoured cheques were given for repayment of the loan of Rs.80 lacs given by the respondent/plaintiff to the appellant/defendant.

7. Trial court by the impugned judgment has refused to grant leave to defend by noting that the appellant/defendant did not in the leave to defend application dispute that the four cheques were signed by her. The appellant/defendant also did not plead that the four cheques were not filled in the handwriting of the appellant/defendant. Trial court also notes that the case of the appellant/defendant was that she informed the police about the missing cheques but no such document was filed to show that such a complaint was made to the police. Trial court has also observed that it is very strange that if four cheques were missing from the cheque book of the appellant/defendant and which were presented around one and half year after the appellant/defendant found them missing, then there was no reason why in this long period the appellant/defendant did not intimate the bank to stop the payments of these missing cheques. These aspects are noted in paras 7 and 8 of the impugned judgment and these paras read as under:- “7. The defendant has nowhere denied her signatures on the above noted four cheques in question. Therefore, it was for her to explain as to why she had kept four signed cheques with her at her residence. It is also not her case that she had kept the blank signed cheques with her and that the amount and other particulars appearing on these cheques have not been filled up by her. It can safely be concluded from the contents of the application for leave to defend that these cheques, originals of which are on record, bear the signatures of the defendant and have also been filled up in her own handwriting. The cheques bear the name of the plaintiff as „payee‟. It has no where been explained by the defendant that why she had kept with her signed cheques in the name of the plaintiff in the sum of Rs.20 lacs each.

8. As per the own contention of the defendant, the cheques have been stolen from her residence in the month of January 2015. Though she has mentioned in the application that she gave intimation about the theft of cheques to the Police Station as well as to her bank but no such document has been filed on record. It is thus difficult to believe at this stage itself that any such intimation has been sent by the defendant to the Police Station or to be bank. Further the cheques are stated to have been stolen from the residence of the defendant in the month of January 2015 whereas these have been presented for encashment by the plaintiff in the month of July 2016 i.e. after a gap of about one and half years. It is not discernible from the perusal of the application for leave to defend as to why the defendant had not issued „stop payment‟ instruction to her bank with regards to these four cheques.”

8. I completely agree that in the leave to defend application the appellant/defendant had set out a false and concocted story and the trial court therefore has given correct reasoning in paras 7 and 8 for rejecting the moonshine defence of the appellant/defendant.

9. Learned counsel for the appellant/defendant argued that there was no reason for issuing of four cheques, all of the same date and in fact one cheque could have been issued for the amount of Rs.80 lacs, however, this argument in my opinion will not take the case of the appellant/defendant any further because there need not be exact explanation on record of four cheques having been issued instead of one inasmuch as there is no dispute that all the four cheques bear the signatures of the appellant/defendant and were dishonoured on presentation for the reason of insufficient funds and the appellant/defendant did not file any copy of the police complaint whereby it was alleged that the cheques were missing and neither did the appellant/defendant inform the bank to stop payment on the cheques on the ground that te cheques are missing from the cheque book of the appellant/defendant.

10. There is no merit in the appeal. Dismissed. C.M. No.45599/2017 (stay)

11. Since the appeal is dismissed, this application is disposed of as infructuous.

DECEMBER 15, 2017 VALMIKI J. MEHTA, J Ne