Final Order 17

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. AAKANKSHA VYAS,
SCJ-cum-RC (NORTH EAST DISTRICT)
KARKARDOOMA COURTS, DELHI
Civ Suit No.88/23
Mukesh Kumari vs Akash
O R D E R
07.05.2024
1. Vide this order, I shall dispose of the application seeking leave to
defend filed by the defendant.
2. Briefly stated, the plaintiff has filed the present suit under Order 37
CPC for recovery of Rs.1,69,000/- along with
pendente lite and future
interest at the rate of 24% per annum from the date of the suit till realization.
It is the case of the plaintiff that there were sound friendly relation between
the parties as the defendant had taken a three wheeler of the plaintiff on
payment on daily basis. It is stated that on 20.11.2021, the defendant had
taken a loan of Rs.1,90,000/- in cash for two months. Further in this regard
on 04.01.2022, a Deed of Settlement was executed between the plaintiff and
the defendant as per which the defendant was to repay the loan of the plaintiff
in various installments as follows :
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“I. The defendant shall pay Rs.3,000/- (Rupees Three Thousand
Only) per month from 05.02.2022 to 05.07.2022 to the plaintiff.
II. The defendant shall pay Rs.5,000/- (Rupees Five Thousand
Only) per month to the plaintiff from 05.08.2022 to 05.07.2023 to the
plaintiff.
III. The defendant shall pay Rs.7,000/- (Rupees Seven Thousand
Only) per month from 05.08.2023 to 05.11.2024 to the plaintiff.”
It is alleged by the plaintiff that as per the Settlement Deed, the
defendant had paid monthly installments of Rs.3000/- from 05.02.2022 to
05.07.2022. But in August 2022, the defendant had paid only Rs.3000/-
instead of Rs.5000/-. It is further alleged that the defendant refused to pay
the remaining installments despite request of the plaintiff and legal notice
sent by her. Hence, the present suit.
3. In the present application seeking leave to defend along with the
supporting affidavit, the defendant has denied that he took the alleged loan
amount from the plaintiff. It is stated that the defendant is an Auto Rickshaw
Driver and in January 2022, he had taken an Auto Rickshaw from the
plaintiff on daily rent but the plaintiff had imposed the condition that some
documents will have to be signed by the defendant. Thereafter, the plaintiff
obtained the signatures and thumb impression of the defendant on some
blank papers and one photo of the defendant on stamp paper in the presence
of one Sh. Rohtash Singh and told the defendant that the Rent Agreement of
the above said Rickshaw will be prepared on these papers. The defendant has
pleaded that the plaintiff filled up the blank papers to prepare the loan receipt
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and Deed of Settlement relied upon by her. It is, therefore, pleaded by the
defendant that the said documents have been executed fraudulently by the
plaintiff. He has also denied that any installment in the sum of Rs.3000/- was
ever paid by him to the plaintiff as no loan was ever taken by him. It is also
pleaded that the loan receipt dated 20.11.2021 does not bear the signatures of
any witness and therefore, it cannot be relied upon. Further, the Deed of
Settlement is also pre-mature as it is executed before the time period of two
months allegedly given by the plaintiff to the defendant to pay the loan
amount. Apart from this, the defendant has also pleaded that the summons
for judgment was not served upon the defendant in the prescribed manner and
the documents on which the plaintiff is relying have not been supplied to the
defendant with the summons for Judgment.
4.
Per contra, in his reply, the plaintiff has submitted that in the
application seeking leave to defend, the defendant has not disclosed any
ground and therefore, on this score alone, the present application deserves to
be dismissed. It is further pleaded that the plea of the defendant that his
signatures and thumb impression were obtained by the plaintiff on blank
papers along with his photo on stamp paper is an after thought. Further, the
defendant did not reply to the legal notice sent by the plaintiff which also
shows that the defence taken by the defendant is not genuine. It is also stated
that the present application has not been filed within the stipulated period of
10 days as required under Order 37 CPC.
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5. I have carefully perused the averments in the plaint as well as the
application of the defendant seeking leave to defend and supporting affidavit
as well as the reply filed by the plaintiff. In the case titled
IDBI Trusteeship
Services Ltd vs Hubtown Ltd 2017 (1) SCC 568, the Hon’ble Supreme Court
has laid down the principles governing an application for leave to defend as
follows:
“If the defendant satisfies the Court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit;
if the defendant raises triable issues indicating that he has a fair
or reasonable defence, although not a positively good defence, the plaintiff
is not entitled to sign judgment, and the defendant is ordinarily entitled to
unconditional leave to defend;
even if the defendant raises triable issues, if a doubt is left with
the trial judge about the defendant’s good faith, or the genuineness of the
triable issues, the trial judge may impose conditions both as to time or
mode of trial, as well as payment into court or furnishing security. Care
must be taken to see that the object of the provisions to assist expeditious
disposal of commercial causes is not defeated. Care must also be taken to
see that such triable issues are not shut out by unduly severe orders as to
deposit or security;
if the Defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode of
trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or security or
both can extend to the entire principal sum together with such interest as
the court feels the justice of the case requires.
If the Defendant has no substantial defence and/or raises no
genuine triable issues, and the court finds such defence to be frivolous or
vexatious, then leave to defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith;
if any part of the amount claimed by the plaintiff is admitted by
the defendant to be due from him, leave to defend the suit, (even if triable
issues or a substantial defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the defendant in court.”
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These principles have been re-iterated in a recent Judgment of the
Hon’ble Supreme Court in the case titled
B.L. Kashyap And Sons Ltd. vs
M/S Jms Steels And Power Corporation (Judgment dated 18 January, 2022).
6. Having referred to the relevant principles, I now proceed to decide
the present application seeking leave to defend. I shall first deal with the
preliminary objections taken by both the parties. Although the defendant has
pleaded that the summons for judgment has not been served upon him in the
prescribed manner and he has not been supplied the documents on which the
plaintiff is relying, no such objection was taken by the defendant on
09.05.2023 i.e. the date on which as per his own averment in the present
application, he has been served with the summons for judgment. Further, the
affidavit accompanying the present application is a detailed affidavit in which
the above mentioned documents of the plaintiff have been discussed.
Therefore, the above said averment of the defendant cannot be accepted. The
defendant has also pleaded that the loan receipt dated 20.11.2021 is not
attested by any witness and further that the Deed of Settlement dated
04.01.2022 is premature. The validity of the loan receipt cannot be impugned
merely because there is no witness to the same and there is no such
requirement in law. The arguments that the Deed of Settlement is premature
is also of no consequence as parties to a contract are always at liberty to vary
the terms of their contract.
On the other hand, the plaintiff has pleaded that the present
application seeking leave to defend was not filed within the prescribed
period. However, the record reflects that on 28.03.2023, direction was given
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by the Court for issuance of summons for judgment returnable for 09.05.2023
but on that date, the said summons were received back with the report ‘left’.
Thus, the defendant had not been served with the summons for Judgment.
But on the same day, the defendant had appeared in the Court and submitted
that he is living at the address on which the summons had been issued. Thus,
the defendant is deemed to have been served with the summons for Judgment
on 09.05.2023 and the same is also admitted by the defendant in the present
application. On 19.05.2023, the leave to defend application of the defendant
seeking leave to defend had come on record. Therefore, the leave to defend
application has been filed within the stipulated period.
7. Now coming to the merits of the present application, admittedly,
the parties knew each other as the defendant has stated that he had taken the
Auto Rickshaw on rent on the daily basis from the plaintiff. The defendant
has also admitted his signatures on the loan receipt dated 20.11.2021 and the
Deed of Settlement dated 04.01.2022 relied upon by the plaintiff. The only
plea taken by the defendant qua the said documents is that his signatures were
taken on blank papers by the plaintiff on the pretext of preparing Rent
Agreement regarding the Auto taken by the defendant from the plaintiff.
However, this is a bald plea. It is pertinent to mention that the Deed of
Settlement dated 04.01.2022 is a notarized document. Further, it also bears
the signatures of one witness, namely, Rohtash Singh and it is nowhere
pleaded by the defendant in the present application that the said Sh. Rohtash
Singh is in collusion with the plaintiff. Reliance is placed upon the case titled
Pradyuman Overseas vs Sandeep Jindal (judgment of Hon’ble Delhi High
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Court dated ), it has been held that :
“Merely pleading that the cheques were signed in blank and handed
over is not sufficient to be entitled to an opportunity to lead evidence, else
Order 37 of CPC shall become a dead letter. The same presumption rule
applies to the pleas of having signed and delivered papers in blank.”
8. Therefore, I am of the opinion that the defence raised by the
defendant is not a genuine one and no triable issue has been raised and
therefore, the present application is dismissed.
9. Application of the defendant seeking leave to defend stands
disposed of.
Announced in the open Court
on day of 07th May 2024
(AAKANKSHA VYAS)
SCJ-cum-RC (North-East)
KKD Courts/07.05.2024
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