Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DR. SHIRISH AGGARWAL
DISTRICT JUDGE – 03, NEW DELHI DISTRICT
PATIALA HOUSE COURTS : NEW DELHI
CS No.313/2023
CNR No. DLND01-007393-2023
Nitin Tanwar
S/o Late Sh. Ramesh Tanwar
R/o WZ-147, Naraina Village,
Kair, South West Delhi,
Delhi-110028.
...Plaintiff
Versus
Sumit
S/o Sh. Ramesh Kumar
R/o CB-76B, Naraina Ring Road,
South West Delhi,
Delhi-110028.
...Defendant
15.01.2025
ORDER
1. By this order, the application of the defendant under Order
37 Rule 3 (5) of CPC for leave to defend will be decided.
2. It is the case of the plaintiff that the defendant resides in
his neighbourhood and shared a friendly relationship with the
plaintiff.
3. It is stated that since they knew each other for a long
period of time, the defendant started borrowing money from the
plaintiff from April, 2021 onwards on the false pretext that he
needs the money for treatment of his ailing father.
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 1 of 11
-- 1 of 11 --
4. It is averred that the plaintiff paid a total of Rs.40,14,782/-
to the defendant from the year 2021 till the year 2023, out of
which Rs.21,14,782/- was by UPI transaction and Rs.19,00,000/-
was in cash.
5. It is pleaded that the plaintiff made several requests to the
defendant to return the money. It is stated that only Rs.2,39,000/-
were returned though IMPS and remaining payment was not
paid. It is stated that when the plaintiff told the defendant that he
will report the matter to the police, the defendant gave a written
undertaking/acknowledgment to the plaintiff dated 15.03.2023 in
the presence of Mr. Sachin Bhatnagar and Mr. Madan Lal
admitting his liability of Rs.37,75,782/- and also issued a cheque
of the same amount.
6. It is submitted that when the cheque was presented, it was
returned dishonored. Thereafter, legal notice was sent to the
defendant and despite service of the notice, the remaining
amount was not re-paid by the defendant.
7. On the basis of the above averments, the plaintiff instituted
the present suit under Order 37 of CPC for recovery of
Rs.37,75,782/- along with pendente lite and future interest from
the defendant.
8. It is stated in the application for leave to defend that the
defendant only received amounts through bank
transfer/electronic transfer and no amount had been paid by the
plaintiff to the defendant in cash. It is further stated that whatever
amount the defendant took from the plaintiff was against
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 2 of 11
-- 2 of 11 --
collateral security, which is evident from the statement sent by
the plaintiff through his mobile number to the defendant.
9. It is submitted that for repayment of the principal amount,
the defendant has already paid Rs.3,94,000/- to the plaintiff. It is
stated that the plaintiff had threatened the defendant that he will
sell the gold articles of the defendant kept with him as collateral
security, in case the defendant does not return the amount. In
support of this averment, the defendant has filed certain
WhatsApp chats that took place between the plaintiff and the
defendant.
10. It is stated that the plaintiff has falsely claimed that the
defendant took money for his father’s treatment. It is submitted
that the father has no medical problem. It is averred that the
plaintiff is a money lender by profession and gives loan to
several people at exorbitant rate of interest. It is stated that the
defendant has already paid an amount of Rs.10,00,000/- in cash
to the plaintiff as payment of interest. It is stated that the plaintiff
took amount in cash only and did not issue any receipt.
11. It is stated that it is highly improbable that the plaintiff
would advance money in cash and not even take any receipt or
acknowledgment from the defendant.
12. It is averred that the plaintiff had taken four blank signed
cheques and five or six blank signed pages from the defendant
which the plaintiff has later misused and converted into an
undertaking of the defendant.
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 3 of 11
-- 3 of 11 --
13. It is stated that the plaintiff has gold articles of the
defendant as collateral security which include 11 chains, 30 kade
and bangles, one bracelet, five earrings, three necklaces, one ring
totaling 512 gm and other items of the defendant.
14. It is stated that the plaintiff does not have means and
financial capacity to lend Rs.19,00,000/- to the defendant in cash.
It is stated that it is highly improbable that the plaintiff would
lend such a large amount without charging any interest and
without obtaining any acknowledgment.
15. On the basis of the above averments, it is prayed that leave
to defend be granted and defendant be granted an opportunity to
contest the suit.
16. Reply to the application has been filed. It is stated in the
reply that the application has not been filed within the prescribed
period of 10 days from service of judgment.
17. It is averred that the defendant has misrepresented material
facts and has not filed the application in the prescribed format. It
is submitted that the defendant has admitted in his application
that he had received loan of Rs.21,14,782/- from the plaintiff by
electronic mode and has repaid only Rs.3,94,000/-. It is
submitted that in view of this admission, the defendant owes
Rs.17,20,782/- to the plaintiff and therefore, unconditional leave
to defend cannot be granted to the defendant.
18. It is submitted that as per the defendant, he has paid
Rs.10,00,000/- as interest on the loan amount. It is averred that
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 4 of 11
-- 4 of 11 --
rate of interest and the principal amount have not been disclosed
and therefore, reply given by the defendant is evasive and thus,
the payment of loan of several lakhs of rupees by the plaintiff to
the defendant is deemed to have been admitted by the defendant.
19. It is contended that the WhatsApp chats filed by the
defendant are forged, fabricated and incomplete.
20. It is submitted that the payment of Rs.2,60,000/- by NEFT
in the month of September, 2021 by the defendant was for
repaying of loan that the defendant had taken from one Mr.
Ashok Tanwar and Mrs. Alpana Tanwar.
21. The remaining averments made by the defendant in his
application have been denied and the contents of the plaint have
been affirmed as true and correct.
22. Replication to the reply has been filed in which the
averments made in the reply have been denied.
23. Arguments have been heard and record has been perused.
24. During the course of arguments, Ld. Counsel for the
plaintiff submitted that he is not pressing the preliminary
objections including the objection of leave to defend being filed
belatedly and is only contesting the application on merits.
25. Even though the plaintiff has stated that the WhatsApp
chats filed by the defendant are forged, fabricated and
incomplete, the plaintiff has not filed the actual, complete and
correct WhatsApp chats. As per the WhatsApp chats filed by the
defendant, on 01.04.2022, the defendant sent a message to the
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 5 of 11
-- 5 of 11 --
plaintiff requesting for some money. To this, the plaintiff replied
that he will not make the payment without security. These
messages indicate that there is truth in the averment of the
defendant that some security was given by the defendant to the
plaintiff at the time of obtaining loan. This is besides the fact that
in today’s day and age, no one is likely to lend money, that too in
cash and without obtaining any receipt or acknowledgment and
without obtaining any collateral security.
26. As per the WhatsApp chats, on 29.08.2022, the plaintiff
sent a message to the defendant asking for the payment. He
stated that if payment is not made, he will carryout the sale. In
response, the defendant requested the plaintiff not to carryout the
sale and undertook to start returning the money.
27. On 21.10.2022, plaintiff sent a message to the defendant
that he is selling the gold, to which the defendant replied and
requested that that it be not sold.
28. These messages corroborate the version of the defendant
that collateral security was given to the plaintiff at the time of
obtaining loan. This is a material fact which ought to have been
disclosed by the plaintiff in the plaint and has been concealed.
29. Ld. Counsel for the plaintiff has submitted that the
defendant has not disclosed the weight and quality of the gold
allegedly handed over by the defendant to the plaintiff. He has
contended that the defendant has not even filed any
acknowledgment of giving the gold and bills of purchase of the
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 6 of 11
-- 6 of 11 --
gold. It is argued that the averment of the defendant that the gold
was given as collateral security is vague and false.
30. It is further argued by him that it is not natural for anyone
to make payment of Rs.10,00,000/- in cash without obtaining any
acknowledgment in written and therefore, the averment of the
defendant that he has paid interest of Rs.10,00,000/- in cash is
false.
31. If it is hard to believe that defendant paid Rs.10,00,000/-
and gave gold to the plaintiff without obtaining any
acknowledgment, it is equally hard to believe that the plaintiff
lent Rs.19,00,000/- to the defendant in cash without obtaining
any acknowledgment or receipt at the time of making payment. It
is the case of the plaintiff himself that he kept lending money to
the defendant in installments from 06.04.2021 till 14.01.2023.
The plaintiff has not disclosed the time period within which these
amounts had to be returned by the defendant. It is hard to believe
that there was no time schedule for returning these amounts and
the plaintiff kept lending money to the defendant in installments
without calling upon the defendant to first return the previously
borrowed amounts and without obtaining any acknowledgment
or security.
32. The acknowledgment/receipt filed by the plaintiff is dated
15.03.2023 which is much after the loan amounts were
transferred in cash.
33. It is not uncommon for a private and individual money
lender to obtain blank signed papers and cheques from the
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 7 of 11
-- 7 of 11 --
borrower. It is possible that the defendant had indeed given a
blank signed paper and blank signed cheque to the plaintiff,
which were later filled in by the plaintiff.
34. The Court does not agree with the submission of the Ld.
Counsel for the plaintiff that since the defendant did not reply to
his legal notice, the Court should draw adverse inference. In the
case of Malepalli Udaya Vs. Kanuboyina Dharmaraju, CRP
No.2127 of 2003 decided by the Hon’ble High Court of Andhra
Pradesh on 08.12.2003, it was held that not replying to a legal
notice would not constitute an admission or a tacit consent in
respect of the demanded liability.
35. None of the judgments relied upon by the Ld. Counsel for
the plaintiff apply to the facts of the present case. In the present
case, the averments of the defendant are supported with
documentary material. This is besides the fact that the stage of
furnishing proof in support of the defence is yet to come. In this
context, reference is made to the decision of the Division Bench
of the Hon’ble High Court of Delhi in the case of Babbar Vision
India Pvt. Ltd. Vs. Rama Vision Ltd. (2002) 99 DLT 556 (DB) in
which the following was held:
“8. It is a settled position in law that there is a discretion
vested in Court under Order 37 Rule 3(2) CPC, while
considering the question of granting leave, but such
discretion is required to be exercised on sound judicial
principles, which in turn means, in consonance with the
principles of natural justice that form the foundations of our
laws. It has been held that whenever the defense raises a
friable issue, leave must be granted, whether the defense is
legal or a equitable one and even though it may not
ultimately turn out to be a good defense. As a rule, where a
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 8 of 11
-- 8 of 11 --
valid defense or friable issue is disclosed, the defense is
bonafide and leave must be granted unconditionally
otherwise the grant of leave may be illusory. If the Court is of
the opinion that the defense is not bonafide one, it can
impose conditions. The Supreme Court in Santosh Kumar v.
Bhai Mool Singh held that where defense is good and valid
one, conditions cannot be imposed. Power to impose
conditions is only there is ensure that there be a speedy trial.
If there is reason to believe that the defendant is trying to
prolong litigation and evade speedy trial, conditions can be
imposed. It was held that it is always undesirable and indeed
impossible to lay down hard and fast rules in the matter of
proper exercise of discretion. However, in general the test to
be applied should be whether the defense raises a real issue
and not a sham one, in the sense that, if the facts alleged by
the defendant are established, there would a good or even a
plausible defense on those facts.
9. In the instant case, learned Single Judge lost sight of
an important fact that stage of furnishing proof in support of
the defense had not yet come, which would come only after
the defendant has been allowed to enter appearance and to
defend the suit.
36. This Court is of the opinion that the Plaintiff has not come
to the Court with clean hands since he has not disclosed all the
material facts. The plaintiff has concealed the circumstances in
which he purportedly gave a loan of Rs.19,00,000/- to the
defendant in cash without obtaining any acknowledgment at the
time of giving of loan and without obtaining any security.
37. The plaintiff has also not explained the mention of gold in
his WhatsApp messages sent to the defendant, which as per the
defendant was collateral security given by the plaintiff to the
defendant. Even though the plaintiff has denied the chats saying
that the chats are incomplete, the plaintiff has not filed the correct
and complete chats and therefore, the denial of the plaintiff is
bald and evasive. In the case of S.P Chengalvaraya Naidu (Dead)
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 9 of 11
-- 9 of 11 --
by LRs Vs. Jagannath (Dead) by LRs and Ors. (1994) 1 SCC 1, it
was held that the Courts are meant for imparting justice between
the parties and one who comes to the Court must come with the
clean hands. It was held that a person whose case is based on
falsehood has no right to approach the Court. It was held that
such person can be summarily thrown out at any stage of the
litigation.
38. In the case of Ramjas Foundation Vs. Union of India
(2010) 14 SCC 38, it was held that a person who does not come
to the Court with clean hands is not entitled to be heard on merit
and is not entitled to any relief and this principle applies to all
cases instituted in Courts and judicial forums. It was observed
that the underlying object of this principle is that every Court is
not only entitled but is duty bound to protect itself from
unscrupulous litigants who do not have any respect for truth and
who try to pollute the stream of justice by resorting to falsehood
or by making mis-statement or by suppressing material facts.
39. The Court agrees with the submission of the Ld. Counsel
for the plaintiff that the defendant has admitted its liability of
Rs.17,20,782/-. In view of this admission, unconditional leave to
defend should not ordinarily be granted. The Court would have
called upon the defendant to atleast pay/deposit the amount that
the defendant has admitted that he is liable to pay. However, the
same cannot be directed as long as the collateral security i.e. gold
is not returned by the plaintiff to the defendant. The plaintiff
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 10 of 11
-- 10 of 11 --
cannot be permitted to retain the gold while the defendant is
called upon to pay/deposit the admitted amount of liability.
40. The Court is of the opinion that an opportunity should be
granted to the defendant to lead evidence on how much is
actually the amount that was lent by the plaintiff to the defendant,
how much amount was returned and if there is indeed collateral
security in the form of gold/jewellery with the plaintiff. The
defendant has disclosed triable issues on which parties should
lead evidence.
41. For the above reasons, the Court is inclined to grant
unconditional leave to defend to the defendant. The application
under Order 37 Rule 3 (5) of CPC is therefore allowed.
(Announced in the open Court
on 15.01.2025)
(Dr. Shirish Aggarwal)
District Judge/New Delhi
District, Patiala House Courts
New Delhi
CS No. 313/23 Nitin Tanwar Vs. Sumit Page 11 of 11
-- 11 of 11 --