* HIGH COURT OF DELHI : NEW DELHI
Date of Order: 27th August 2008
+ R.F.A. No. 88/2008
M/S SHREE GLASS TRADERS ..... Appellant
Through Mr. Rakesh Malhotra, Advocate
versus
M/S LAKSHMI FLOAT GLASS LTD ..... Respondent
Through Mr. T.L. Aggarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
PRADEEP NANDRAJOG, J.
1. Heard learned counsel for the parties for final disposal. Record has been perused.
2. The respondent was the plaintiff. Suit under Order 37 of the Code of Civil Procedure was filed praying for a decree in sum of Rs.4,31,310/- with interest @ 18% per annum till realization. The cause pleaded in the plaint and additionally made relatable to a suit under Order 37 of the Code of Civil Procedure, was as pleaded in para 3 of the plaint which reads as under :-
R.F.A. No. 88/2008 Page | 1 "That the defendant above named drew, issued and delivered a cheque No.981256 dated 20.09.2001 for a sum of Rs.4,11,36/- only, drawn upon Corporation Bank, Palam, New Delhi, in favour of the plaintiff company, towards the payment of the amount due from the defendant to the plaintiff company on account of purchases made by the defendant from the plaintiff company between the period from 05.12.1998 to 14.12.1998 against their bills as stated in the statement of account filed herewith."
3. Alleging that the cheque was dishonoured and returned by the banker on which it was drawn with the remarks „‟insufficient funds'' this suit was filed.
4. Appellant who was impleaded as the sole defendant being the drawer of the cheque filed an application seeking leave to defend when it was served with the summons of the suit in the prescribed form as contemplated by Order 37 Rule 2(2) of Code of Civil Procedure.
5. The appellant departured from the procedure prescribed under Order 37 requiring appellant to first enter appearance and file in the court an address for service of the notice of summons for judgment. Thus, it is obvious that summons for judgment were not taken out.
6. Seeking leave to defend, appellant projected the triable issues which according to appellant would arise on the defence available and if established would non suit the respondent.
R.F.A. No. 88/2008 Page | 2
7. With reference to the averments made in para 2 of the plaint the attention of the learned trial Judge was drawn to the statement of account filed by the plaintiff, which revealed that between 5.12.1998 to 14.12.1998 i.e. the dates mentioned in para 2 of the plaint, the appellant had received goods worth Rs.3,07,604/-. With reference to the same statement of account, it was pointed out that as recorded by the respondent in the said statement, it had received Rs.57,079/- from the appellant during said period meaning thereby, even as per the statement of account filed by the respondent for the period 5.12.1998 to 14.12.1998 amount payable would be Rs.2,50,522/-.
8. It was further pointed out that on 16.10.1999, the respondent had itself issued a Credit Note in favour of the appellant in sum of Rs.62,120/- and on 25.3.1999 and 25.12.1999, vide cheque No.862417 and 464787 the respondent had received Rs.50,000/- and Rs.31,327/- respectively. Thus it was pleaded that the appellant would be entitled to further adjustment of Rs.1,43,447/-. Subtracting the said amount from Rs.2,50,525/-, liability to pay Rs.1,07,078/- was admitted.
9. Pertaining to the cheque in question, it was averred that since parties recommence business after a long interval, R.F.A. No. 88/2008 Page | 3 appellant had issued 6 blank cheques, 1 of which was alleged to have been used. It was pleaded that the cheque in question is dated 20.9.2001. The difference in the ink used to sign the cheque and to fill up the cheque was also highlighted.
10. In the reply filed by the respondent to the application seeking leave to defend the respondent sought to rely upon acknowledgement purportedly executed by the appellant on 16.1.1999 and 8.6.2001.
11. Learned trial Judge has penned 2 orders of even both dated 27.10.2005 decreeing the suit. By the first order dated 27.10.2005, it has been noted that since the appellant did not file the memo of appearance required to be filed as per the provisions of Rule 3 of Order 37, the suit had to be decreed. So holding, suit was decreed but not as prayed for. Interest awarded is @ 9% per annum.
12. By the second order of even date i.e. 27.10.2005, the merits of the application seeking leave to defend has been considered and rejected holding that since the appellant had not disputed the balance confirmation made by him for 5.12.1998 to 14.12.1998 no triable issue arose for consideration.
13. The findings of the learned trial Judge stands summarized R.F.A. No. 88/2008 Page | 4 in para 6 of the order dated 27.10.2005 which reads as under:-
"In the present case the defence raised by the defendant that he has given the blank cheques without any consideration is not plausible at all particularly when the defendant has not disputed the balance confirmation made by him on dated 05.12.1998 to 14.12.1998 on the statement of claim. Even otherwise the perusal of the cheque apparently does not show any forgery thus I am of the considered opinion that the defence raised by the defendant in case of Mrs. Raj Duggal Vs. Ramesh Kumar Balsal, and Jashbhai Motibhai Patel Vs. Hasmukhbhai Ravjibhai Patel, do not render any help. In the facts and circumstances of the case and the judgment referred by the counsel for the plaintiff, I am of the confirmed opinion that the defendant is not entitled for the grant of leave to defend. The application is hereby dismissed."
14. Suffice it would be state that appellant had, with reference to the statement of account filed by the respondent, drawn attention of the court to the transactions transacted between the parties from 5.12.1998 to 14.12.1998 and had clearly pleaded, plea being made good with reference to the respondent‟s own document i.e. statement of account, that between said period it had purchased goods worth only Rs.3,07,604/-. Thus, prima facie the cheque in question could not relate to the payments due for purchases made between 5.12.1998 to 14.12.1998.
R.F.A. No. 88/2008 Page | 5
15. Further, as noted above, respondent‟s statement of account revealed that it had received Rs.57,079/- during aforesaid period and as noted above subsequently it had received further payments by two cheques and had issued a credit note, total adjustment value whereof would come to Rs.1,42,447/-.
16. We note that the suit filed by the respondent nowhere refers to a written acknowledgement. As noted hereinabove, the cause of action pleaded in the suit is the cheque and nothing else.
17. Prima facie, the application seeking leave to defend does project a defence which if successful would non suit the plaintiff save and except in sum of Rs.1,07,078/-.
18. Learned Counsel for the appellant states that the appellant is prepared to pay to the respondent sum of Rs.1,07,078/-.
19. Pertaining to the first order dated 27.10.2005, decreeing the suit in absence of a memo of appearance filed, suffice would it be to state that the legislature intend requiring memo of appearance to be filed by a defendant who was sued under Order 37 of the Code of Civil Procedure to fast track service of summons for judgment on the given address. Only thereafter R.F.A. No. 88/2008 Page | 6 an application seeking leave to defend has to be filed. Thus, by filing an application seeking leave to defend without awaiting service of summons for judgment would not mean that the suit has to be decreed.
20. The procedural laws are intended to be subserved to the cause of substantive justice provided no prejudice is caused to the opposite party.
21. The appeal is accordingly stands disposed of setting aside both impugned orders dated 27.10.2005. The consequential decree passed in the suit is also set aside.
22. Appellant‟s application seeking leave to defend is allowed but subject to the condition that within 3 weeks from today, appellant would deposit Rs.1,07,078/- with the learned trial Judge which amount would be permitted to be withdrawn by the respondent unconditionally for the reasons the appellant admits said amount to be payable.
23. The appellant shall file a written statement within 6 weeks from today with advance copy to learned counsel for the respondent.
24. Parties are directed to appear before the learned trial Judge who would revive the suit and proceed in accordance with law; appearance would be made by the parties before the R.F.A. No. 88/2008 Page | 7 learned trial Judge on 10.09.2008.
25. A copy of this order shall be supplied dasti by the registry to learned counsel for the parties on payment of usual charges.
26. Registry shall ensure that the trial court record is returned through a special messenger within a week so that it is available before the learned trial Judge well before 10.09.2008, the date notified for the parties to appear before the learned trial Judge.
27. Before concluding, we may note that nothing stated herein would be construed as an expression on the merits of the controversy between the parties. We have considered the submissions and the pleadings limited on the question whether the defence raises a tribal issue which if succeeds would non suit the respondent.
28. No costs.
PRADEEP NANDRAJOG,J
SUNIL GAUR, J
AUGUST 27, 2008
dkg
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