Final Order 6

Order Details: COPY OF ORDER
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Date: 18.07.2024
IN THE COURT OF MS. SHIVALI BANSAL
DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010077752023
CS No. 503/2023
In the matter of :-
Sh. Ajeet Singh (Aged about 61 years)
S/o Late Shri Dharam Singh
AT: AW-478, Sanjay Gandhi Transport
Nagar, New Delhi-110042.
Also at: G-6, Data Ram Apartments,
Sector – 18, Rohini, Delhi-110089
Mobile: 9310213681 ...… Plaintiff
Versus
Sh. Pawan Verma
Proprietor of M/s Pawan Cargo Carriers
AT: Shop No. 4, Khasra No. 12/27,
Near RG & Clouds Farm House,
G. T. Karnal Road Firani Road,
Budhpur, New Delhi-110036.
Also At : CW-611, Sanjay Gandhi Transport
Nagar, New Delhi-110042.
Mobile: 9811115431 ......Defendant
Date of Institution : 21.07.2023
Date of Final Arguments Heard : 06.07.2024
Date of pronouncement of judgment : 18.07.2024
ORDER
1 Vide this order, I shall dispose off the application of the defendant for
seeking leave to defend.
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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2 The plaintiff has filed the present suit under Order 37 CPC for
recovery of Rs. 5,00,000/- along with interest @ 18% per annum. It is
stated that the plaintiff is a businessman by profession and a
Transporter in the vicinity of Sanjay Gandhi Transport Nagar, Delhi. It
is stated that the defendant is also engaged in the same business and
the defendant has been known to plaintiff since more than a decade.
3 It is stated that the defendant approached the plaintiff for providing an
urgent financial assistance in the month of February, 2020 and the
plaintiff gave a friendly loan of Rs. 5,00,000/- in cash to the defendant
in the second week of February, 2020 at the plaintiff’s office. The
defendant assured the plaintiff that he will repay the said loan amount
by 31.07.2020 and an acknowledgment to that effect was executed.
The defendant also handed over a post-dated cheque bearing No.
285588 dated 31.07.2020 drawn on Yes Bank, Sector-18, Rohini,
Delhi Branch amounting to Rs. 5,00,000/- (Rupees Five Lacs only) in
discharge of his outstanding liability towards the plaintiff with the
assurance that if the defendant would fail to make the above stated
payment by 31.07.2020 to the plaintiff, then the said cheque could be
presented by the plaintiff to his banker, wherein it would be duly
honored and encashed. It is stated that in the first week of August,
2020, the plaintiff approached the defendant for the repayment of the
said loan amount but the defendant requested the plaintiff for grant of
one more month time to make the payment. It is stated that as the
defendant failed to repay the friendly loan, therefore, the plaintiff
presented the above said cheque for encashment with his bank i.e.
Axis Bank, Sanjay Gandhi Transport Nagar, Delhi but the same was
dishonored/unpaid with the remarks "Account Dormant" vide cheque
returning memo dated 15.09.2020 and the information of the same
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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was received by the plaintiff on 19.09.2020 from his banker. It is
stated that the defendant was well aware that the aforesaid cheque
would be dishonored for being "Account Dormant". Thereafter, the
plaintiff sent a legal notice dated 07.10.2020 by Speed post/Whatsapp
to the defendant through his counsel, which was duly delivered and
served upon the defendant on 08.10.2020 and also through whatsap. It
is stated that since the defendant failed to make the payment of Rs.
5,00,000/-(Rupees Five Lacs Only) within 15 days from the receipt of
the legal notice sent U/s 138 NI Act, the plaintiff filed a criminal
complaint bearing CC No. 3681/2020 titled as "Ajeet Singh vs Pawan
Verma" which is currently pending adjudication before the Court of
Sh. Ajay Narwal, Ld. MM, North District, Rohini Court, Delhi.
Hence, the present suit is filed with following prayers:-
i Pass a money decree of Rs. 5,00,000/- (Rupees Five Lakhs Only)
in favour of the plaintiff and against the defendant;
ii Grant pendent lite and future interest @18% per annum from the
date of filing of the present suit till its realization in favour of the
plaintiff and against the defendant;
iii Award the cost of litigation in favour of the plaintiff and against
the defendant;
iv Pass such other or further Orders and / or directions as this
Hon'ble Court may deem just and proper in the facts and
circumstances of the case and in the interest of justice.
4 Ld. Counsel for defendant in his application for seeking leave to
defend has denied all the allegations levelled by the plaintiff. He
stated that the defendant has been served with the summon for
judgment in the present case on 10.11.2023. That the facts stated in
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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the plaint are triable in nature. It is stated that plaintiff is not entitled to
claim any amount from the defendant. It is stated that the present suit
is full of concealment of material facts, mis-disclosure of facts and
malafides. It is stated that defendant used to transport its goods
through plaintiff transport firm, namely, M/s Nice Frieght Carrier and
defendant used to pay the commission in cash and through account to
the plaintiff. It is stated that plaintiff used to take blank signed security
cheque from parties who take plaintiff transport services. The
defendant gave the cheque in question to the plaintiff as a security
cheque and the letter head of defendant firm was given blank to the
plaintiff to note the quantity of the goods to be transported by the
plaintiff. It is stated that defendant neither executed any documents in
favour of the plaintiff nor the defendant received any amount from the
plaintiff. It is stated that there was no loan transaction between the
parties as alleged. Defendant further stated the be leading evidence, he
would show that the plaintiff has misused the cheque. Therefore, the
defendant prayed that his application be allowed to contest the present
suit.
5 Heard. Record Perused.
6 In the facts and circumstances of the present case, it is admitted by the
defendant that the cheque bearing no. 285588 drawn upon Yes Bank
dated 31.07.2020 was issued by the defendant. However, it is stated in
the application for seeking leave to defend that the said cheque was
blank and was issued as a security cheque for business purpose. The
defendant has stated that the defendant used to transport its goods
through plaintiff transport firm, namely, M/s Nice Freight Carrier and
defendant used to pay commission in cash and through account to the
plaintiff for the purpose of transportation. It is stated by the defendant
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that the plaintiff used to take blank signed security cheque from
parties who used to transport their goods through plaintiff and
therefore, the defendant also issued the said cheque to the plaintiff. It
is also stated that the acknowledgment / letter head relied upon by the
plaintiff was given by the defendant to note the quantity of the goods
to be transported by the plaintiff, which is necessary by the plaintiff. It
is further stated that the plaintiff in his suit has not given the exact
date when the loan of Rs. 5,00,000/- was given to the defendant and
during the course of arguments, Ld. Counsel for defendant has stated
that the acknowledgment is without any amount, date or witness.
7
Per contra, it is the case of the plaintiff that a sum of Rs. 5,00,000/-
was advanced by the plaintiff to the defendant as loan which was due
for payment on 30.07.2020 and a security cheque bearing no. 285588
was given by the defendant along with acknowledgment as security.
However, the defendant had defaulted in the payment of the same and
therefore, the cheque was presented for encashment. It is stated that
the cheque was dishonored vide returning memo dated 15.09.2020
with the remarks “Account dormant”. Hence, the present suit is filed
for recovery of Rs. 5,00,000/-.
8 The law holding the field of summary suit is recently laid down by the
Hon’ble High court of Delhi in “
Chander Pal Singh Vs. Shripal Singh,
MANU/DE/0577/2022”, wherein it is held as under:-
8. As far as the issue of leave to defend is concerned, the law is
well settled that if the Defendant has no substantial defence and the
defendant does not raise any genuine triable issue, the leave to
defend is liable to be refused and the Plaintiff is entitled to judgment
forthwith. The Supreme Court in IDBI Trusteeship Services Ltd. v.
Hubtown Ltd. AIR 2016 SC 5321 has held as under:
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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"18. Accordingly, the principles stated in paragraph 8 of
Mechelec's case will now stand superseded, given the
amendment of Order XXXVII Rule 3, and the binding
decision of four judges in Milkhiram's case, as follows:
a. 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;
b. 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;
c. 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;
d. 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.
e. 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;
f. 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.
9. Recently, the Supreme Court in B.L. Kashyap and Sons Ltd. v.
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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JMS Steels and Power Corporation and Ors. C.A. No. 379/2022
decided on 18th January 2022, relying upon IDBI (supra), has held
that the leave to defend can be refused only in those cases where the
Defendant has no substantial defence and is raising no genuine
triable issues coupled with the Court's view that the defence is
frivolous or vexatious. The Supreme Court has further observed in
the said judgment that Court can impose heightened conditions as to
payment into Court of the entire principal sum together with just
and requisite interest where it is of the opinion that the defence
raised by the Defendant is plausible but improbable. The relevant
portion of the judgment reads:
"17.1. As noticed, if the Defendant satisfies the Court that he
has substantial defence, i.e., a defence which is likely to
succeed, he is entitled to unconditional leave to defend. In the
second eventuality, where the Defendant raises triable issues
indicating a fair or bonafide or reasonable defence, albeit not a
positively good defence, he would be ordinarily entitled to
unconditional leave to defend. In the third eventuality, where
the Defendant raises triable issues, but it remains doubtful if the
Defendant is raising the same in good faith or about
genuineness of the issues, the Trial Court is expected to balance
the requirements of expeditious disposal of commercial causes
on one hand and of not shutting out triable issues by unduly
severe orders on the other. Therefore, the Trial Court may
impose conditions both as to time or mode of trial as well as
payment into the Court or furnishing security. In the fourth
eventuality, where the proposed defence appear to be plausible
but improbable, heightened conditions may be imposed as to
the time or mode of trial as also of payment into the Court or
furnishing security or both, which may extend to the entire
principal sum together with just and requisite interest.
17.2. Thus, it could be seen that in the case of substantial
defence, the Defendant is entitled to unconditional leave; and
even in the case of a triable issue on a fair and reasonable
defence, the Defendant is ordinarily entitled to unconditional
leave to defend. In case of doubts about the intent of the
Defendant or genuineness of the triable issues as also the
probability of defence, the leave could yet be granted but while
imposing conditions as to the time or mode of trial or payment
or furnishing security. Thus, even in such cases of doubts or
reservations, denial of leave to defend is not the rule; but
appropriate conditions may be imposed while granting the
leave. It is only in the case where the Defendant is found to be
having no substantial defence and/or raising no genuine triable
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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issues coupled with the Court's view that the defence is
frivolous or vexatious that the leave to defend is to be refused
and the Plaintiff is entitled to judgment forthwith. Of course, in
the case where any part of the amount claimed by the Plaintiff
is admitted by the Defendant, leave to defend is not to be
granted unless the amount so admitted is deposited by the
Defendant in the Court.
17.3. Therefore, while dealing with an application seeking leave
to defend, it would not be a correct approach to proceed as if
denying the leave is the Rule or that the leave to defend is to be
granted only in exceptional cases or only in cases where the
defence would appear to be a meritorious one. Even in the case
of raising of triable issues, with the Defendant indicating his
having a fair or reasonable defence, he is ordinarily entitled to
unconditional leave to defend unless there be any strong reason
to deny the leave. It gets perforce reiterated that even if there
remains a reasonable doubt about the probability of defence,
sterner or higher conditions as stated above could be imposed
while granting leave but, denying the leave would be ordinarily
countenanced only in such cases where the Defendant fails to
show any genuine triable issue and the Court finds the defence
to be frivolous or vexatious."
10. A perusal of the above decisions extracted above shows that
unconditional leave to defend can be granted by the Court only
when a substantial defence is raised by the Defendant. The defence
raised in this case does not seem to be plausible. It is worth
reiterating that in the present case, the signature on the cheque is
admitted by Defendant. The only defence raise by the Defendant is
that a blank cheque given by the Defendant has been
misappropriated by the Plaintiff. The said defence does not inspire
the confidence of the Court and is neither triable nor substantial. It
is merely a plea taken to defeat the purpose of the issuance of the
cheque itself. The Court enquired from the Ld. Counsel of the
Defendant if he would be willing to deposit the entire principal
amount. However, the Defendant has expressed inability to deposit
the said amount…..”
9 On perusal of record, the application for seeking leave to defend filed
on behalf of the defendant does not disclose any triable issue. The
defence of the defendant is that the cheque in question was issued as a
security cheque; was signed but the particulars were left blank. This
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does not give any defence to the defendant as it is a practice of
prudence that whenever the cheques are issued, the names and account
must be filled so as to rule out any apprehension of misuse of cheque.
The defendant, if in case, had issued a blank cheque, the same was
done at his own peril.
10 The contention of the defendant that defendant had issued the cheque
as security for business purpose has no merit as the defendant has not
disclosed the specific transaction for transportation of goods for which
such a blank cheque was issued to the plaintiff. The application is
silent upon the fact that such cheques were regularly issued by the
defendant to the plaintiff or was issued only once to the plaintiff for all
times to come. Thus, making it highly improbable that the said cheque
was issued to secure the payment for transportation of goods of
defendant. Moreover, the intentions of the defendant cannot be said to
be clean as he had issued a cheque from a dormant account to the
plaintiff, as the same was found to be dishonored. The defendant had
the intention to defeat the claim of the plaintiff and for this purpose,
he has used a dormant account to issue cheque. The defendant is a
business man and must be aware that his bank account was dormant.
11 On perusal of the notice u/s 251 Cr.P.C, the defendant had pleaded not
guilty in a Complaint Case no. 3681/2020 titled as “Ajeet Singh Vs.
Pawan Verma”, few facts have emerged which makes the defence of
the defendant highly improbable. The signature on the cheque were
admitted. The defence taken by the defendant in the complaint case
was that the cheque was tendered as security towards a friendly loan
which was asked by the defendant from the plaintiff, however,
ultimately, the said loan was not taken from the plaintiff and the
plaintiff has misused the security cheque. Before this court, the
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defendant has taken a different defence altogether. Now, it is stated by
the defendant that the cheque was issued for securing the payment of
goods which was transported through the plaintiff’s firm. Thus, the
defendant is raising multiple defences before different forums which
raise doubt upon the credibility of defendant himself and the defence
of the defendant is a complete sham.
12 The defendant has argued that the acknowledgment bears no amount,
no date and no witness. The contents of acknowledgment are as
under:-
“
Subject, cheque no. 285588, Yes Bank dt. 31.7.2020
Sir,
Aapko yeh cheque de raha hun 31.07.2020 ko cheque lekar
payment kar di jayegi 31.07.2020 tak.”
Thus, this acknowledgment was accompanied with the cheque with an
undertaking to repay the amount till 31.07.2020. the particulars of
cheque were given in the acknowledgment, therefore, there was no
requirement for the amount or date to be stated separately. There is no
mandate in law that an acknowledgment is valid only when it is signed
by the witnesses. Therefore, the submissions of the defendant is
entirely baseless and without merit.
13 Ld. Counsel for defendant has relied upon the cross-examination dated
23.09.2023 in complaint case no. 3681/2020 of the plaintiff, wherein,
it is admitted by the plaintiff that he is engaged in the business of
transportation and the defendant used to transport his goods through
the firm of the plaintiff i.e. M/s Nice Frieght Carrier on payment of
commission in cash to the plaintiff. This admission by the plaintiff has
no bearing upon the defence of the defendant. It only shows that there
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were business relations between the plaintiff and the defendant i.e. the
plaintiff and defendant were not strangers to each other. This court is
of the considered view that due to this relationship between the
parties, the plaintiff had given / advanced a loan of Rs. 5,00,000/- to
the defendant. Thus, this admission fructifies the claim of the plaintiff
against the defendant. Accordingly, the application of the defendant
for seeking leave to defend is dismissed and the suit of the plaintiff is
decreed. The plaintiff is entitled to a recovery of Rs. 5,00,000/- from
the defendant along with interest @ 6% per annum from the date of
filing of suit till its actual realization.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open
Court on 18.07.2024
Shivali Bansal
District Judge-03, North District
Rohini Courts, Delhi
CS No.503/23
Ajeet Singh Vs. Pawan Verma
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