Final Order 4

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDITIONAL DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
CIVIL SUIT NO.124/2023
CNR NO.: DLND01-003059/2023
IN THE MATTER OF :-
MR. GURPREET SINGH SETHI
S/O SH. JASPAL SINGH SETHI
R/O WZ-43/1, PLOT NO.178,
GALI NO.6, GURU NANAK NAGAR,
TILAK NAGAR, NEW DELHI-110018
…..PLAINTIFF
VERSUS
1. M/S SAWHNEY SHOES
2. MR. SIMRAT SINGH SAWHNEY
PROPRIETOR/AUTHORIZED SIGNATORY
M/S SAWHNEY SHOES
R/O FLAT NO.166, SAROJINI NAGAR,
NEW DELHI-110023
.....DEFENDANTS
DATE OF INSTITUTION : 29.03.2023
DATE OF CONCLUSION OF FINAL ARGUMENT : 17.07.2023
DATE OF PRONOUNCEMENT OF ORDER : 17.07.2023
J U D G M E N T
1. This is a suit for recovery of a sum of Rs.3,50,000/- (Rupees
Three Lac Fifty Thousand only) along with pendent-elite
interest at the rate of 18% per annum. The suit is based on a
dishonoured cheque.
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 1 of 7
-- 1 of 7 --
2. The brief facts as disclosed in the plaint are; Plaintiff/Gurpreet
Singh Sethi and defendant No.2/Simrat Singh Sawhney were
on friendly terms. Defendant No.1 M/s Sawhney Shoes is
stated to be the sole proprietorship concern of defendant No.2.
On the request of defendant No.2, plaintiff advanced him an
interest free friendly loan of Rs.3,50,000/-. The date on which
the loan was advanced has not been disclosed. Towards
repayment of the loan, defendant No.2 issued a post-dated
cheque bearing No.001316 dated 16.09.2019 for a sum of
Rs.3,50,000/- drawn on HDFC Bank, Sarojini Nagar Market,
New Delhi. Plaintiff presented the cheque with his banker but
the same was dishonoured and received back with remarks
‘stopped payment’ vide cheque return memo dated 14.10.2019.
Legal Notice dated 19.11.2019 was issued to the defendants but
they failed to repay the loan amount. Hence, the present suit.
3. Summons under Order XXXVII of CPC were served on the
defendants. Defendants failed to file appearance within the
requisite period.
4. Record perused.
5. Plaintiff has filed the suit on the basis of cheque dated
16.09.2019. The Hon’ble Supreme Court of India has held in
Suo Motu Writ Petition (C) No.3 of 2020 in Re: Cognizance for
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 2 of 7
-- 2 of 7 --
Extension of Limitation as under:
“5. Taking into consideration the arguments
advanced by learned counsel and the impact of
the surge of the virus on public health and
adversities faced by litigants in the prevailing
conditions, we deem it appropriate to dispose of
the M.A. No. 21 of 2022 with the following
directions:
I. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated
08.03.2021, 27.04.2021 and 23.09.2021, it is
directed that the period from 15.03.2020 till
28.02.2022 shall stand excluded for the
purposes of limitation as may be
prescribed under any general or special laws in
respect of all judicial or quasi-judicial
proceedings.
II. Consequently, the balance period of
limitation remaining as on 03.10.2021, if any,
shall become available with effect from
01.03.2022.
III. In cases where the limitation would
have expired during the period between
15.03.2020 till 28.02.2022, notwithstanding
the actual balance period of limitation
remaining, all persons shall have a limitation
period of 90 days from 01.03.2022. In the
event the actual balance period of limitation
remaining, with effect from 01.03.2022 is greater
than 90 days, that longer period shall apply.
IV. It is further clarified that the period from
15.03.2020 till 28.02.2022 shall also stand
excluded in computing the periods prescribed
under Sections 23 (4) and 29A of the
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 3 of 7
-- 3 of 7 --
Arbitration and Conciliation Act, 1996, Section
12A of the Commercial Courts Act, 2015 and
provisos (b) and (c) of Section 138 of the
Negotiable Instruments Act, 1881 and any other
laws, which prescribe period(s) of limitation for
instituting proceedings, outer limits (within
which the court or tribunal can condone
delay) and termination of proceedings.”
6. In view of above-said directions, the suit is within limitation.
7. Now, coming to the merit of the matter. Suit is based on a
dishonoured cheque. Section 6 of the Negotiable Instrument
Act defines the cheque as a bill of exchange drawn on a
specified banker not expressed to be payable otherwise then on
demand. Normally, cheques are issued to the banks holding the
money of the drawer of the cheque. The bank is in the position
of the debtor of the drawer of the cheque. The cheque is thus an
order of the drawer thereof as creditor, to the bank who is his
debtor, to pay to the payee of the cheque on the date of
presentation, the amount thereof. The relationship between the
drawer of the cheque and his banker is contractual. Section 30
states that the drawer of a cheque is bound in case of dishonor
of cheque by the drawee or acceptor thereof to compensate the
holder provided due notice of dishonour has been given to, or
received by, the drawer. Thus, Section 30 requires due notice of
dishonour to be given to the drawer of the cheque for
maintaining a claim for compensation on account of dishonour
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 4 of 7
-- 4 of 7 --
of the cheque. Section 31 states that the drawee of the cheque
having sufficient funds of the drawer in his hands properly
applicable to the payment of such cheque must pay the cheque
when duly required to do so, and, in default of such payment,
must compensate the drawer for any loss or damage caused by
such default. In view of these provisions, it is apparent that the
dishonour of a cheque is actionable under Order XXXVII of
CPC provided notice of dishonour has been given to the
drawer. The present suit is based on a dishonoured cheque.
Plaintiff has placed on record the original cheque and the
cheque return memo. The copy the legal notice dated
19.11.2019 has been placed on record. The suit has been filed
in the manner prescribed under Order XXXVII of CPC. It
contains an averment to the effect that the plaintiff is not
seeking any other relief which does not fall within the ambit of
Order XXXVII of CPC.
8. The suit is based on cheques executed by defendant No.2.
Indeed, the claim of the plaintiff contains the amount towards
interest and incidental charges but this does not mean that the
plaintiff is dis-entitled for a decree under Order XXXVII of
CPC. Question whether interest could be granted in the absence
of agreement between parties came for consideration before
Hon'ble Delhi High Court in "Ramesh Chander versus M/s Shiv
Infra Promoters Pvt Ltd RFA No. 211/2017 dated 21st August,
2018 in which it held as under :
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 5 of 7
-- 5 of 7 --
"No doubt there is no agreement between the
parties, but counsel for the appellant/plaintiff
rightly relies upon paragraph 21 of the
judgment of the Supreme Court in the case of
South Eastern Coalfields Ltd. Vs. State of M.P.
and ors., (2003) 8 SCC 648 and which holds
that interest is payable in equity in certain
circumstances. This paragraph 21 of the
judgment in the case of South Eastern
Coalfields Ltd. (supra) reads as under:- "21.
Interest is also payable in equity in certain
circumstances. The rule in equity is that interest
is payable even in the absence of any agreement
or custom to that effect though subject, of
course, to a contrary agreement. Interest in
equity has been held to be payable on the
market rate even though the deed contains no
mention of interest. Applicability of the rule to
award interest in equity is attracted on the
existence of a state of circumstances being
established which justify the exercise of such
equitable jurisdiction and such circumstances
can be many.”
9. In Ramesh Chandra's case after relying upon the judgment of in
“South Eastern Coal Fields Ltd Vs State of MP and Anr”
(2003) 8 SCC 648, the High Court of Delhi held that a Court
can always grant an interest on equity basis to a party entitled
for the same and therefore, there is nothing wrong in law for a
plaintiff to claim an interest in a summary suit as grant of an
interest would always be subject to discretion of the Court.
Merely because a plaintiff has demanded an interest from
defendant, it cannot be said that the suit filed by plaintiff would
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 6 of 7
-- 6 of 7 --
not be maintainable and therefore, contention of defendant on
this account is rejected.
10.Section 80 of Negotiable Instrument Act, 1881, provides that
when no rate of interest is agreed, rate of interest shall be
calculated at the rate of 18% per annum from the date when
such amount should have been paid by the party. Present suit is
based on dishonoured instrument, therefore, plaintiff, under the
law, is entitled to claim interest @ 18% on the dishonoured
cheque. Accordingly, the suit is decreed against the defendant
with the following reliefs;
(a) A decree for a sum of Rs. 3,50,000/- (Rupees Three Lac and
Fifty Thousand only).
(b) Pendent-elite and future interest at the rate of 18% per annum
till realization of decreetal amount.
(c) Cost of the suit is also awarded to the plaintiff.
11.Decree sheet be prepared accordingly.
12.File be consigned to record room.
Announced in the open court on
17.07.2023
(Sudhanshu Kaushik)
Addl. District Judge-02 & Waqf Tribunal
New Delhi District, Patiala House Courts,
New Delhi/17.07.2023
CS No.124/2023 Gurpreet Singh Sethi Vs M/s Sawhney Shoes & Anr. Page 7 of 7
-- 7 of 7 --