Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH KAPIL KUMAR, ADDITIONAL
DISTRICT JUDGE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 57/2023
Lokesh Kumar
S/o Sh Ram Chander .....Plaintiff
Vs.
1) Sh Bhagat Singh
2) Pankaj Singh
S/o Sh Bhagat Singh ....Defendants
O R D E R
1. Vide this order, I intend to dispose off the application for
leave to defend moved on behalf of defendants.
2. The case of the plaintiff is that the defendant no.1 was the
guard in the same school at Vijay Park wherein plaintiff was
Principal. It is stated that defendant no.1 sought financial help
from the plaintiff to perform marriage in his family for which Rs
3,50,000/- was given to defendant no.1 out of which Rs 2 Lacs
were given vide cheque no. 70948 dated 01.02.2021 drawn on
State Bank of India which was encahsed by defendant no.2 and
Rs 1,50,000/- was given as cash.
3. It is stated that payment of Rs 2 Lacs is being reflected in
the statement of bank account of the plaintiff. It is stated that
despite various requests the loan was not returned to the plaintiff.
It is stated that after various persuation, the defendant no.1 paid
Rs 30,000/- in cash to the plaintiff on 25.09.2022 and also issued
a cheque of Rs 3,20,000/- bearing no. 000006 dated 25.10.2022
drawn on Andhra Bank with the assurance that same will
honored on presentation.
CS No. 57/2023 Page No. 1/6
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4. It is stated that the cheque was presented for payment but
the same got dishonored. It is further stated that plaintiff tried to
contact the defendants but they started avoiding the plaintiff. It is
further stated that legal notice dated 13.02.2023 was issued upon
the defendants which was received by the defendants on
15.02.2023 but even then no payment was made and hence the
present suit was filed.
5. The defendants put appearances and thereafter moved the
application for leave to defend.
6. Vide application for leave to defend it is stated that the
defendants are not under any liability to pay any amount to the
plaintiff and the present suit is a false one just to extort the
money from the defendants.
7. It is stated that the plaintiff assured that the defendant no.1
that he will help him to get the job for his son (defendant no.2) as
a security guard in his school for which the plaintiff had taken the
blank signed cheque from the defendant no.1 along with the
photocopies of various documents. It is stated that plaintiff also
took Rs 50,000/- from defendant no.1 in cash on 21.08.2022 but
the plaintiff did not help defendant no.1 for securing the job of
defendant no.2 as security guard in the school. It is stated that it
is the plaintiff who is required to pay Rs 50,000/- to the
defendant no.1.
8. It is stated that the cheque has been misused by the
plaintiff by filing the present false suit and as such the defendants
be granted to unconditional leave to defend. Ld Counsel for the
defendants relied upon judgment titled as Ms Deep Shikha @
Dolly vs Smt Archana Jain RFA no. 355/2022 decided by
Hon’ble High Court of Delhi on 02.06.2023.
CS No. 57/2023 Page No. 2/6
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9. The reply to the present application has been filed on
behalf of the plaintiff wherein all the avernment of defendants
have been denied. It is also submitted that the defendants made a
false story as a defence to the present suit which cannot be relied
upon. It is further submitted that there is no triable issue in the
present matter.
10. During the course of arguments ld Counsel for plaintiff
strongly relied upon his bank statement as per which Rs 2 Lacs in
cash was taken by defendant no.2 via cheque from the bank of
the plaintiff on 01.02.2021.
11. I have heard arguments advanced by both the parties and
carefully perused the records.
12. In Mechelec Engineers and Manufacturers vs Basic
Equipments Co-corporation (1976) 4SCC 687, the Hon'ble
Supreme Court has laid down the guidelines for grant of leave to
defend the suit : -
(i) if the defendant satisfied the Court that he has a good
defence to the claim on merits, the defendant is entitled to
unconditional leave to defend;
(ii) if the defendant raises a triable issue indicating that he
has a fair or a bonafide or reasonable defence, although not
a possible good defence, the defendant is entitled to
unconditional leave to defend;
(iii) if the defendant discloses such facts as may be deemed
sufficient to entitle him to defend, i.e. if the affidavit
discloses that at the trial he may be able to establish a
defence to the plaintiff's claim, the Court may impose
conditions being as to time of trial or mode of trial but not
as to payment into Court or furnishing security;
CS No. 57/2023 Page No. 3/6
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(iv) if the defendant has no defence, or if the defence is
sham or illusory or practically moonshine, defendant is not
entitled to leave to defend;
(v) if the defendant has no defence or defence is illusory or
sham or practically moonshine, the court may show mercy
to the defendant by enabling him to try to prove a defence
but at the same time protect the plaintiff imposing condition
that amount claimed should be paid into court or otherwise.
13. Further in the judgment titled as B.L Kashyap & Sons
Limited vs J.M.S Steels and Power Corporation & Anr (2022)
3SCC 294 it was held by Hon’ble Apex Court that while dealing
with an application seeking leave to defend it would not be
correct approach to proceed as if denying leave is the rule or that
leave to defend is to be granted only in exception cases or only in
cases where defence would appear to be meritorious one. It was
further held that if the defendant indicates that he has a fair or a
reasonable defence, he is ordinarily entitle to unconditional leave
to defend, unless there be any strong reason to deny leave. The
Hon’ble Apex Court further held that if there remains are
reasonable doubt about the probability of defence, sterner or
higher conditions could be imposed while granting leave to
defend but denying leave would be ordinarily countenknced only
in such cases where defendant fails to show any genuine triable
issue and court finds defence(s) to be frivolous or vexatious.
14. This is the suit for recovery of Rs 3,20,000/- filed by the
plaintiff. The cheque as relied upon by the plaintiff bears the
signatures of defendant no.1. The alleged loan was stated to be
given to defendant no.1 through defendant no.2.
CS No. 57/2023 Page No. 4/6
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15. The bank statement account as relied upon by the plaintiff
reveals that the cash was allegedly withdrawn by defendant no.2.
The cheque in question on the basis of which the present suit has
been filed has not been signed by defendant no.2. This inturns
reveals that the amount of Rs 2 Lacs was taken by defendant no.2
from the account of the plaintiff but the cheque in question was
not issued by the defendant no.2.
16. There is no document on record as to the alleged payment
of Rs 1,50,000/- in cash by the plaintiff. The plaintiff is a
government servant. It is not the case of the plaintiff that he
withdrew further cash of Rs 1,50,000/- from his account and
thereafter handed over to defendant no.1. This is a open question.
17. Ld Counsel for defendants argued that it was not defendant
no.2 who took cash from the account of the plaintiff as alleged by
the plaintiff while relying upon the statement of account. It is
submitted that plaintiff has not filed his previous cheque on
record which was allegedly issued in the name of defendant no.2
vide which the cash was allegedly withdrawn. This argument of
Ld Counsel for defendants has merits as merely mentioning the
name “Pankaj” in the statement of account is not carrying any
presumption as to the withdrawal by defendant no.2 whose name
is Pankaj Singh.
18. It is a fact of common knowledge that when any bearer
cheque issued in the name of third person vide which the cash
could be withdrawn then the bank always take the endorsement
on the back side of the cheque of the person to whom the cash
was handed over. The plaintiff could have procured that
document from the bank or the copy of the same and could have
placed on record of the present suit in support of his case. No
CS No. 57/2023 Page No. 5/6
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such document is on record.
19. If only the cheque on the basis of which the present suit
has been filed is considered then the cheque bears the signatures
of defendant no.1 only, however as per the case of the plaintiff
the cash was withdrawn by defendant no.2. The summary suit is
not maintainable against both defendants when cheque in
question is signed by one defendant only.
20. All above-facts, as discussed, raises triable issues and
requires leading of evidences by the parties. The defence as set
up by the defendants seems to be a reasonable one. The
defendants are entitled to unconditional leave to defend and the
same is hereby granted accordingly. In view of the same, leave
to defend application of the defendants is hereby allowed.
Ordered accordingly.
Typed to the direct dictation and (Kapil Kumar)
announced in the open court ADJ-01, North-East
on this 8th December 2023 KKD Courts,Delhi/
08.12.2023
CS No. 57/2023 Page No. 6/6
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