Jugnu Bhardwaj v. Shiv Kumar @ Bhola

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant against the impugned judgment of the trial court dated 28.3.2017 by which the trial court has dismissed the leave to defend application filed by the appellant under Order XXXVII Rule 3 CPC and consequently decreed the suit for an amount of Rs.3,50,000/- along with interest at the rate of 8% per annum.

2. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that the appellant/defendant was extended a loan of Rs.3,50,000/- by the respondent/plaintiff on 22.11.2015. This 2017:DHC:3455 original loan agreement dated 22.11.2015 was lost and thereafter the second loan agreement was executed on 19.4.2016 by the appellant/defendant acknowledging his liability to pay the loan amount.

3. Respondent/plaintiff before filing the suit sent a legal notice dated 23.5.2016 by registered post to the appellant/defendant and since this failed to yield the desired result the subject suit was filed.

4. In the leave to defend application filed by the appellant/defendant it was pleaded that the respondent/plaintiff had got signed a promissory note from the appellant/defendant in collusion with the Advocate of the appellant/defendant Sh. Haritmani Gauracharya and who was the Advocate of the appellant/defendant in some other litigation with Sh. Ravi Kumar. It was pleaded that no loan was taken by the appellant/defendant and since the promissory note was the result of fraud being played upon on the appellant/defendant hence the suit was liable to be dismissed.

5. I may note that there is no promissory note as pleaded by the appellant/defendant in the leave to defend application because the document in question is in fact a loan agreement dated 19.4.2016 and as conceded before this Court by counsel for the appellant/defendant.

6. The issue is that whether the appellant/defendant did not execute the loan agreement dated 19.4.2016 and this loan agreement was the result of the fraud being played upon the appellant/defendant in collusion with his Advocate who was engaged in another litigation.

7. In my opinion, the court below has rightly rejected this moon shine defence of the appellant/defendant that the loan agreement was got signed by playing a fraud because it is seen that the loan agreement is of three pages. On each page of the loan agreement the appellant/defendant has not only signed but has also put his thumb impressions. The place of putting of the thumb impressions and signatures on each page of the loan agreement is at different places in the three pages of the loan agreement. Most importantly, the first page of the loan agreement is a stamp paper where the signatures and the thumb impressions of the appellant/defendant exist. This Court accordingly disbelieves that a litigant would sign a stamp paper in blank allegedly because of a fraud by an Advocate in a different litigation. It may be a remote chance which is possible that some blank papers are signed by an Advocate and kept, however, this defence raised by appellant/defendant in this case is completely a moon shine defence because a stamp paper was signed by the appellant/defendant and which stamp paper in fact is the first page of the loan agreement.

8. It is also required to be noted that the appellant/defendant did receive a legal notice dated 23.5.2016, inasmuch as, in the leave to defend application it is not disputed that the legal notice sent to the appellant/defendant dated 23.5.2016 was not received by the appellant/defendant. Counsel for the appellant/defendant however argued that since the suit was filed before the expiry of the period of fifteen days given to send the reply to the legal notice and hence reply was not given, however, admittedly, this defence is not the plea raised in the leave to defend application.

9. The court below has also rightly noted that the complaint filed by the appellant/defendant to the police with respect to fraud being perpetuated upon him is in fact of one day after filing of the suit and the fact that the complaint filed against the Advocate to the Bar Council of Delhi is bereft of any particulars of fraud.

10. I would also like to note that the appellant/defendant in the leave to defend application has not stated that what was the nature of the litigation of the appellant/defendant with Sh. Ravi Kumar, and in which litigation fraud was perpetuated upon the appellant/defendant by taking his signatures on the loan agreement dated 19.4.2016. In fact not only no particulars are given of the litigation with Sh. Ravi Kumar and even pleadings of the litigations with Sh. Ravi Kumar are not filed. It is noted that in the leave to defend application there is no mention of even the name of the Sh. Ravi Kumar or any litigation with Sh. Ravi Kumar.

11. It is therefore clear that the appellant/defendant is taking up a totally dishonest and a moon shine defence and that the leave to defend application of the appellant/defendant was thus rightly dismissed by the court below.

12. There is no merit in the appeal and the same is therefore dismissed. JULY 12, 2017 VALMIKI J. MEHTA, J AK