Final Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA
08.08.2024
Present: Mr. Sanjay Gupta and Mr. Diwakar Tiwari, Ld.
Counsels for plaintiff/non-applicant.
Mr. Prashant Sharma, Ld. Counsel for
defendant/applicant.
ORDER (ORAL)
1. Ld. counsel for the defendant has submitted that there is a
delay of 18 days in filing the application under Order
XXXVII Rule 4 read with Order IX Rule 13 CPC.
2. Heard on the application seeking condonation of delay.
3. For the reasons stated in the application seeking
condonation of delay, the said application is allowed and
the delay is condoned.
4. Heard submissions of ld. counsels for the parties on the
application under Order XXXVII Rule 4 read with Order
IX Rule 13 CPC filed by the defendant/applicant for setting
aside the order dated 24.01.2023 passed in CS No.
640/2019 whereby the application for leave to defend filed
by the defendant was dismissed and the summary suit of
the plaintiff was decreed.
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 1 of 12
-- 1 of 12 --
5. The plaintiff filed the summary suit for recovery of money
on the basis of a dishonoured cheque. The defendant had
entered appearance upon service of the summons for
appearance and had thereafter also filed the application for
leave to defend. The last appearance of the ld. counsel for
the defendant was on 18.02.2021 and thereafter the ld.
counsel for the defendant stopped appearing. Ultimately,
the order dated 24.01.2023 was passed dismissing the
application for leave to defend and decreeing the summary
suit.
6. In the order dated 24.01.2023, I have summarised the case
of the plaintiff in the suit as well as the defence taken by
the defendant in his application for leave to defend. It
would be appropriate to extract the order dated 24.01.2023
in extenso to understand the respective case of the parties
and the reasoning in dismissing the application for leave to
defend, as under:
“1. The plaintiff has filed the present summary
suit u/O 37 CPC for recovery of Rs. 4,93,344/- along
with pendente lite and future interest @ 18% p.a. It
is the case of the plaintiff that the plaintiff is
proprietor of M/s Bansal Ispat and is engaged in the
business of sale of iron rod and sheets and other
allied items. It is stated that the defendant is the
proprietor of M/s. M.K. Industries. It is stated in the
plaint that the defendant approached the plaintiff for
supply of goods. It is stated that as such the plaintiff
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 2 of 12
-- 2 of 12 --
supplied goods to the defendant on various invoices
as per the orders placed by the defendant on credit
and that the plaintiff had opened an account in the
name of defendant in its books of accounts. It is
stated that it was agreed between the parties that the
payment for the goods supplied shall be made within
15 days of receipt at Delhi. It is stated that it was
further agreed that interest @ 24% per annum would
be charged on delayed payments. It is stated that the
materials were duly supplied to the defendant and
defendant made part payments. It is stated that as per
the statement of accounts of the plaintiff, a sum of
Rs.4,55,052/- was outstanding as on the date of
filing the suit. It is stated that in discharge of the
aforesaid liability, the defendant issued cheque
bearing no. 904034 dated 28.01.2019 for
Rs.4,50,000/- drawn on SBI, Talai Bazaar, Kaithal,
Haryana in favour of the plaintiff. It is stated that at
that time, the defendant assured that he had
sufficient funds in the bank and that the cheque
would be duly honoured. It is stated that however,
after the plaintiff deposited the cheque with his
banker Jammu and Kashmir bank, Naraina Branch,
Delhi, the cheque was dishonoured vide memo dated
29.01.2019 for the reasons "Funds insufficient". It is
stated that the plaintiff informed the defendant and
the defendant requested the plaintiff to present the
cheque again in the end of April 2019 and promised
that the cheque would be duly honoured. It is stated
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 3 of 12
-- 3 of 12 --
that however, after depositing the cheque, the
cheque was again dishonoured vide memo dated
01.05.2019 for the reason “Payment stopped by
drawer”. It is stated that thereafter, the plaintiffs sent
legal notice on 23.05.2019 to the defendant through
registered courier A.D. and speed post which was
duly served, however, no payments were made. It is
stated that the plaintiff has also filed proceedings u/s
138 N.I Act against the defendant due to the
dishonour of the cheque. On this basis, the plaintiff
has filed the present summary suit.
2. Along with the plaint, the plaintiff has also
filed certified copies of invoices dated 18.10.2018,
19-20.10.2018 and 25.01.2019 raised by the plaintiff
in the name of defendant. The plaintiff has also filed
its ledger account in respect of the defendant. The
plaintiff has also filed certified copy of cheque dated
28.01.2019 for Rs.4,50,000/- issued by M/s M.K
Industries in the name of plaintiff. The plaintiff has
also filed certified copies of the cheque return
memos.
3. The summons for appearance was issued upon
the defendant and the defendant has filed application
seeking leave to defend. Plaintiff has filed reply to
the application seeking leave to defend.
4. The Ld. Counsel for the defendant had last
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 4 of 12
-- 4 of 12 --
appeared before the Court on 18.02.2021, however,
thereafter on the subsequent dates none appeared on
behalf of the defendant.
5. I have heard the ld. counsel for plaintiff and I
have perused the record.
6. The defence which is sought to be raised by
the defendant in the application for leave to defend
is that the defendant has made all the payments for
the goods supplied by the plaintiff and nothing more
remained to be paid. It is further stated in the
application that the plaintiff had misused the cheque
in question without consent, knowledge and
approval of the defendant. It is further stated that the
plaintiff had not supplied the goods as mentioned in
his statement of account.
7. The defendant has not denied that the cheque
in question was genuine. The defendant has not
explained how the cheque came to be in the
possession of the plaintiff and in what manner the
plaintiff had misused the cheque. The averment
made in the application for leave to defend regarding
misuse of the cheque is very vague. It is nowhere
stated in the application that the defendant had filed
any complaint with the police regarding misuse of
the cheque. The cheque was dishonoured on two
occasions. When this was the case, any reasonable
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 5 of 12
-- 5 of 12 --
person would have made some communication to
the plaintiff regarding misuse or even made some
complaint with police regarding misuse of cheque,
however, there is nothing which is placed on record
by the defendant. The defendant has also not come
forward to argue the application for leave to defend.
In these facts and circumstances, I find that the
defence sought to be raised appears to be moonshine
and frivolous. Accordingly, the application for leave
to defend is dismissed.
8. The statement of account filed by the plaintiff
shows balance of Rs.4,55,042/- to be paid by the
defendant. However, the cheque is for a sum of
Rs.4,50,000/-. In these facts and circumstances, I
would pass decree of Rs.4,50,000/- in favour of
plaintiff and against the defendant alongwith interest
@ 9% per annum from the date of filing of the suit
till actual realization. Costs are decreed in favour of
the plaintiff.
Decree-sheet be drawn accordingly.
9. File be consigned to record room.”
(Emphasis supplied by me)
7. Ld. counsel for the defendant has submitted that as stated
in the application filed by the defendant, which is presently
under consideration, the defendant had earlier appointed a
counsel who was appearing in the case. It is submitted that
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 6 of 12
-- 6 of 12 --
whenever the defendant asked the earlier counsel about the
updates of the case, the defendant was assured that the case
was being handled diligently and that when the appearance
of the defendant would be required, the counsel would
inform the defendant. It is further submitted that due to
certain health issues and since he met with an accident and
was bedridden, the defendant could not properly pursue the
case. It is submitted that the defendant was kept in the dark
by his earlier counsel. It is submitted that the defendant
was not aware that the earlier counsel was not appearing in
the case. It is submitted that the defendant learnt about the
passing of the impugned judgment and decree only on
15.09.2023 when the defendant appeared in the Court of
the Ld. Metropolitan Magistrate, Rouse Avenue Court
Complex, New Delhi in a cheque bouncing case between
the same parties. It is submitted that thereafter, the
defendant has filed the present application for setting aside
of the judgment and decree dated 24.01.2023. It is
submitted that the non-appearance on behalf of the
defendant was due to the negligence of the earlier counsel
for which the defendant ought not to suffer.
8. Ld. counsel for the defendant has further submitted that the
impugned judgment and decree dated 24.01.2023 is also
liable to be set aside as the Court failed to appreciate that
the subject matter of the dispute was a commercial dispute
under section 2(1)(c)(i) and (xviii) of the Commercial
Courts Act. It is submitted that as such, the suit ought to
have been filed before the appropriate Commercial Court
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 7 of 12
-- 7 of 12 --
and was not even maintainable before this Court.
9. On the other hand, ld. counsel for the plaintiff has
submitted that the defendant was well aware of the
proceedings in the summary suit and chose not to appear
and is now making excuses by blaming his earlier counsel.
It is submitted that the defendant has not stated in the
application as to what due diligence was done by the
defendant himself with respect to pursuing his case. It is
submitted that a party cannot simply blame the previous
counsel without clearly stating as to the due diligence
which was carried out by the party itself in pursuing its
case.
10. It is further submitted that impugned judgment and decree
dated 24.01.2023 was passed after carefully considering the
application for leave to defend filed by the defendant and
upon considering that the defence sought to be raised in the
application for leave to defend was frivolous in nature.
11. It is further submitted that in his application for leave to
defend, the defendant never raised any objection that the
suit was not maintainable before this Court on the ground
that the subject matter of dispute was of a commercial
nature under the Commercial Courts Act. It is submitted
that when no such objection was raised in the application
for leave to defend, the defendant cannot now seek setting
aside of the judgment and decree on the basis that the suit
was of a commercial nature.
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 8 of 12
-- 8 of 12 --
12. I have considered the submissions of ld. counsels for the
parties and I have perused the record.
13. It is the defendant’s case that his earlier counsel was
negligent in the matter and his last appearance was on
18.02.2021 and that thereafter the counsel was negligent
and did not appear in the matter and also did not appear for
arguments on the application for leave to defend. I find that
although the defendant has put the blame on the earlier
counsel, the defendant has not clearly stated as to what
deligence was undertaken by the defendant himself in
pursuing his defence in the suit. Although the defendant
has vaguely stated that due to certain health issues and
since he was bedridden due to accident he could not
properly pursue the case, however, no details in this regard
have been given. The defendant has also not mentioned as
to whether he had taken any action against his earlier
counsel for the alleged negligence.
14. Be that as it may, even otherwise, in an application under
Order XXXVII Rule 4 CPC, the defendant is to show not
only that there are special circumstances justifying the non-
appearance to set aside the decree but also that the
defendant is entitled for leave to defend. (See
Rajni Kumar
v. Suresh Kumar Malhotra, (2003) 5 SCC 315)
15. Ld. counsel for the defendant has today not made any
submissions in respect of the objections which were
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 9 of 12
-- 9 of 12 --
actually raised by the defendant in his application seeking
leave to defend and which were considered by this Court in
passing the order dated 24.01.2023 dismissing the
application for leave to defend. Rather, the only submission
which has been made for giving leave to defend is that the
suit was of a commercial nature under section 2(1)(c)(i)
and 2(1)(c)(xviii) of the Commercial Courts Acts.
16. In this regard, it is most relevant that the defendant had
never raised any such objection in his application seeking
leave to defend. As such, the defendant cannot now in his
application under Order XXXIX Rule 4 CPC be permitted
to raise any such objection. In my view, if a defendant does
not raise a particular objection in his application for leave
to defend, then such defendant cannot in an application
under Order XXXIX Rule 4 CPC be permitted to raise any
such objection. Any other view would have serious
consequences, since then the defendants may choose to not
raise objections as to the maintainability of the suit in the
application for leave to defend and after the decree is
passed, move an application under Order XXXVII Rule 4
CPC seeking to raise new objections as to the
maintainability of the suit. This would throttle the summary
nature of the proceedings under Order XXXVII CPC.
17. In any case, I have also considered whether the dispute
involved in the suit would be a commercial dispute under
section 2(1)(c) of the Commercial Courts, and in my view
the subject matter of the present suit would not fall under
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 10 of 12
-- 10 of 12 --
the category of a commercial dispute.
18. In so far as the sections 2(1)(c)(i) and (xviii) are concerned,
the same read as under:
“(c) “commercial dispute” means a dispute arising
out of––
(i) ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement and
interpretation of such documents;
xxx xxx xxx
(xviii) agreements for sale of goods or provision of
services;”
19. A reading of section 2(1)(c)(i) clearly shows that this
provision relates to a dispute arising out of ordinary
transactions of merchants and traders such as those relating
to mercantile documents including enforcement and
interpretation of such documents. In the present case, the
dispute is not relating to any mercantile document or for
enforcement or interpretation of any such documents. The
case of the plaintiff is a summary suit based
simpliciter on
the dishonoured cheque and the plaintiff has claimed the
cheque amount.
20. In so far as the section 2(1)(c)(xviii) is concerned, I would
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 11 of 12
-- 11 of 12 --
hold that the suit being a summary suit for recovery
simpliciter of the dishonoured cheque amount, the same
cannot strictly be said to be a dispute arising out of an
agreement for sale of goods.
21. As I have already mentioned, in respect of the actual
objections which were raised by the defendant in his
application for leave to defend and which were considered
in impugned judgment dated 24.01.2023 and were held to
be moonshine and frivolous, no submissions have been
forthcoming on behalf of the defendant.
22. Hence, I see no reason to interfere with the judgment and
decree dated 24.01.2023.
23. Accordingly, the application under Order XXXVII Rule 4
CPC read with Order IX Rule 14 CPC is hereby dismissed.
24. Consequently, the application for stay of the decree is also
dismissed.
25. File be consigned to record room after due compliance.
(SATYABRATA PANDA)
District Judge-04
Judge Code- DL01057
PHC/New Delhi/08.08.2024
Misc DJ No.1262 of 2023
VIJAY BANSAL Vs. PRADEEP KALRA Page No. 12 of 12
-- 12 of 12 --