* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.1002/2017
Reserved on: 29th November, 2017
% Pronounced on: 4th December, 2017
NARESH KUMAR JAIN ..... Appellant
Through: Mr. Sunil K. Jain, Advocate
with Mr. Anil K. Aggarwal,
Advocate.
versus
LALLAN SHAH ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J C.M. Nos. 43487/2017 (exemption) & 43489/2017 (exemption)
1. Exemption allowed subject to just exceptions.
C.M.s stand disposed of.
C.M. No.43491/2017 (for condonation of delay)
2. For the reasons stated in the application, delay of 262 days in filing the appeal is condoned.
C.M. stands disposed of.
RFA No.1002/2017 and C.M. Nos.43488/2017 (stay) & 43490/2017 (under Order XLI Rule 27 CPC)
3. This Regular First Appeal filed under Section 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment of the Trial RFA No.1002/2017 Page 1 of 6 Court dated 5.12.2016 by which the trial court has dismissed the leave to defend application filed by the appellant/defendant under Order XXXVII Rule 3(5) CPC in the suit filed by the respondent/plaintiff for recovery of Rs.6,28,889.34/- along with interest
4. The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of Rs.6,28,889.34/- along with interest pleading that respondent/plaintiff was in the business of metal scrap, waste paper etc under the name and style of Krishna Trading Co. It was pleaded that on 15.1.2011, the appellant/defendant purchased 3,920 kg of aluminium scrap from the respondent/plaintiff at a price of Rs.111.90 per kg plus 5% VAT totalling to Rs.4,60,580.40/-. The scrap supplied by the respondent/plaintiff to the appellant/defendant was acknowledged by the appellant/defendant on 15.1.2011 itself and the appellant/defendant for payment issued two post dated cheques. One cheque was for Rs.2 lacs dated 15.4.2011 and the other cheque was for an amount of Rs.2,60,580 dated 30.4.2011. Both the cheques when presented were dishonoured resulting in respondent/plaintiff filing the complaint under Section 138 of the Negotiable Instruments Act, 1881. Respondent/plaintiff served a legal notice upon the RFA No.1002/2017 Page 2 of 6 appellant/defendant dated 25.5.2013, and thereafter filed the subject suit.
5. In the leave to defend application filed by the appellant/defendant it was pleaded that the appellant/defendant had nothing to do with the respondent/plaintiff and the subject cheques were never given to the respondent/plaintiff. It was pleaded by the appellant/defendant that the subject cheques were given to one Sh. Brij Bhushan as the appellant/defendant was pressurized to give some pre-signed blank cheques to the said Sh. Brij Bhushan. However the matter was pleaded to have been settled between the appellant/defendant and Sh. Brij Bhushan whereby Sh. Brij Bhushan agreed and admitted that there is no due against the appellant/defendant. This agreement was supported by the letters accordingly written by Sh. Brij Bhushan in his hands bearing his own signatures. The subject cheques were given to Sh. Brij Bhushan as security which were to be returned after settlement but Sh. Brij Bhushan failed to do so and it is pleaded in the leave to defend application that it appears said Sh. Brij Bhushan had handed over the RFA No.1002/2017 Page 3 of 6 subject cheques to the respondent/plaintiff who has misused them and filed the subject suit.
6. I may note that in the impugned judgment trial court has arrived at a wrong conclusion of fact that the letters of Sh. Brij Bhushan were not filed by the appellant/defendant with his leave to defend application, though appellant/defendant had, however, the same would have no bearing to the other reasoning and conclusions given in the impugned judgment by which the leave to defend application of the appellant/defendant has been rightly dismissed. Trial court in my opinion is justified in dismissing the leave to defend application because in the statement recorded by the appellant/defendant in the Section 138 of Negotiable Instruments Act proceedings, the appellant/defendant on 15.2.2013 in response to a court question stated that cheques in question bear the signatures of the appellant/defendant and that the appellant/defendant did not know how the cheques came to the possession of the complainant (i.e plaintiff in the subject suit), whereas a different stand was taken in the leave to defend application filed by the appellant/defendant that the subject cheques were given to Sh. Brij Bhushan and not to the RFA No.1002/2017 Page 4 of 6 respondent/plaintiff and that Sh. Brij Bhushan appeared to have illegally given the subject cheques to the respondent/plaintiff. Trial court in my opinion also rightly held that the appellant/defendant was served in the suit on 26.7.2013 but till the disposal of the leave to defend application on 5.12.2016 it is no where the case of the appellant/defendant that he has initiated any action against Sh. Brij Bhushan for failing to return the cheques or misusing the cheques by giving the same to the respondent/plaintiff. Trial court has further rightly held that it is difficult to believe that the appellant/defendant would not have taken action against Sh. Brij Bhushan in case his plea was correct that the cheques were wrongly given by Sh. Brij Bhushan to the respondent/plaintiff.
7. I have further put a query to the counsel for the appellant/defendant that if assuming there were disputes between the appellant/defendant and Sh. Brij Bhushan and which were later on sorted, and that on such agreement/settlement Sh. Brij Bhushan had to return the cheques to the appellant/defendant then why the appellant/defendant at the time of the alleged compromise with Sh. Brij Bhushan way back in the January, 2011 did not take back the RFA No.1002/2017 Page 5 of 6 cheques and thereafter till the subject suit was filed in the year 2014 and even till the leave to defend application was disposed of on 5.12.2016, with the fact that no legal action whatsoever was initiated by the appellant/defendant against Sh. Brij Bhushan for alleged illegal retention of the cheques, and to this court query the counsel for the appellant/defendant had no answer.
8. Therefore it is seen that the cheques are the cheques of the appellant/defendant. The cheques do bear the signatures of the appellant/defendant. The appellant/defendant pleaded that the cheques were given in blank to Sh. Brij Bhushan but this defence has been rightly found by the trial court to be a complete moonshine and this Court has given an additional reason that if there was a compromise between Sh. Brij Bhushan and the appellant/defendant, then, there was no reason why at the time of compromise, the appellant/defendant would not have taken the cheques from Sh. Brij Bhushan way back in January, 2011. The leave defend application was thus rightly dismissed by the impugned judgment.
9. In view of the above there is no merit in the appeal. Dismissed.
DECEMBER 04, 2017/Ne VALMIKI J. MEHTA, J
RFA No.1002/2017 Page 6 of 6