R.K. Jain vs S.K. Mehta
1985 Latest Caselaw 446 Del

JUDGMENT

Sultan Singh, J.

(1) This Revision under Section 115 of the Code of Civil Procedure is directed against the order dated 22-10-1984 of the Subordinate Judge, 1st Class, Delhi refusing leave to defend and passing a decree for Rs. 12,567.65 with costs and future interest @ Rs. 1.20 percent per mensem against the petitioner-defendant.

(2) Briefly these are the facts.

(3) The plaintiff-respondent filed a suit under Order 37 of the Cods of Civil Procedure. He has alleged that the petitioner had taken a loan of Rs. 10.000.00 repayable with interest @ 1.20 per mensem; that the defendant issued two cheques (1) for Rs. 7,500.00 dated 19-1-1983 and (2) for Rs. 3,100.00 dated 1-2-1983 towards repayment of the loan in favor of the plaintiff; that the cheques presented to the bankers were returned with the remarks "Refer to the drawer". The plaintiff sent notice dated 25-2-1984 demanding the amount but getting no response he filed this suit. The defendant entered appearance. Application for summons for judgment was filed and the petitioner defendant filed an application for leave to defend. The petitioner has pleaded that the application for summons for judgment was not signed by a duly authorised person; that the special power of attorney by the plaintiff in favor of his wife was not valid; that there was no cause of action available to the plaintiff; that the suit was liable to be dismissed on account of misjoinder of cause of action; that the plaintiff never advanced loan. The defendant has further alleged that the plaintiff had offered to provide a property at Bareilly for which the defendant had advanced Rs. 10.000.00 and Rs. 600.00 for miscellaneous expenses for execution of relevant documents but later on the defendant on account of personal circumstances expressed his inability to purchase the same. The plaintiff in reply denied all these allegations. The case of the plaintiff as already stated is that a sum of Rs. 10,000.00 was paid and in consideration thereof the defendant had issued the laid cheques. The trial Court dismissed the application for leave to defend and passed a decree against the defendant.

(4) Learned counsel for the petitioner submits that the two cheques were without consideration; that the application for summons for judgment does not disclose any cause of action; that the receipt dated 31-8-1982 does not relate to the alleged loan by the plaintiff to the defendant; that the special power of attorney executed by the plaintiff in favor of his wife is invalid.

(5) PRIMA-FACIE under Section 118 of the Negotiable Instruments Act, a cheque issued is for consideration. It is admitted by the petitioner-defendant that on 31-8-1982 he had received a sum of Rs. 10,000.00 from the plaintiff. His allegation, however, is that this amount was received towards advance for the purchase of a house in New Friends Colony. Thus it must be held that there is no ground even prima-facie to say that the cheques were without consideration. The issue of the two cheques by the defendant in favor of the plaintiff is not denied. The cheques were towards repayment of Rs. 10,000.00 and interest thereon at Rs. 1.20% per mensern.

(6) Learned counsel for the petitioner submits that the application for summons for judgment is signed by the wife of the plaintiff who was appointed as an attorney under a Special Power of Attorney dated 16-5-1984. He submits that under Order 37 Rule 3(4) of the Code of Civil Procedure the plaintiff is required to obtain summons for judgment supported by an affidavit. The plaintiff filed the application dated 20-7-1984 with affidavit wherein it is stated that the cause of action arose out of the two cheques in question; that the amount claimed was Rs. 12,567.65, that there was no defense available to the defendant. The application gives sufficient material requiring the defendant to file an application for leave to defend. The purpose of an application for summons for judgment is to notify the defendant the facts on which he may claim leave to defend. The facts are also mentioned in the plaint. The bundle of facts pleaded in the plaint constitute cause of action for the suit. There is no defect in the application for summons for Judgment. In any case the application for summons for judgment is only a procedure to notify the defendant to file an application for leave to defend under Order 37 Rule 3(5) of the Code. Even if there is any defect in the application for summons for judgment it would not non-suit the plaintiff.

(7) Learned counsel for the petitioner next submits that the power of attorney dated 16-5-1984 does not bear any stamp duty and it is not attested. It Is correct that a stamp duty of Rs. 2.00 is payable on the Special Power of attorney under Article 48(C) Schedule I of the Indian Stamp Act, 1899 as applicable to Delhi. The document had been taken into consideration by the lower court. This document required a stamp duty. The plaintiff can be directed under Section 61 of the Indian Stamp Act to pay stamp duty of Rs. 2.00 besides penalty Rs. 20.00 . The defendant is accordingly directed to deposit Rs. 22.00 in accordance with the law on account of deficiency in stamp duty and penalty thereof.

(8) Lastly it is submitted that the receipt dated 31-8-1982 is with respect to an advance of Rs. 10.000.00 and not with respect to the loan. The receipt dated 31-8-1982 shows that the defendant received this sum as advance for the purchase of a plot in New Friends Colony. If the plaintiff, had agreed to purchase plot this amount would have been adjusted towards the said price but there is no explanation how this amount was adjusted or paid by the defendant. It, appears that the plaintiff never purchased any plot and, therefore, the defendant was in law liable to refund the same. In other words, this amount would be treated as advance to the defendant repayable by him. Learned counsel for the defendant further submits that this receipt was not filed Along with the plaint. The suit is based on the two cheques. It was not necessary for the plaintiff to file this receipt with the plaint. The plaintiff filed this receipt together with the reply to the defendant's application for leave to defend. There is no infirmity in the judgment and order of the trial Court refusing leave to defend. This Revision Petition, is, therefore, dismissed with costs.