Atul Kumar Singh (Capt.) vs Ms. Jalveen Rosha
1999 Latest Caselaw 163 Del

ORDER

M.S.A. Siddiqui, J.

1.By this order, I propose to dispose of the application filed by the defendant under Order 7 Rule 11 CPC.

2.The plaintiff filed this suit for declaration and permanent injunction on the allegations that the plaintiff was interested in purchasing a flat for his residence. He, therefore, approached the defendant, who was dealing in real estate business. Sometime in the month of December; 1994, the defendant informed the plaintiff about a flat offered for sale for Rs.7,00,000/-. Due to financial constraints, the plaintiff expressed his inability to pay the entire consideration in a lump sum. However, on the defendant's suggestion to furnish some security in the form of bearer cheques for finalising the deal, the plaintiff issued the following bearer cheques in favour of the defendant.

       Cheque No.     Date      Bank                Amount
     969772         Nil       Hong Kong Bank      2,00,000/-
     969773         Nil       Hong Kong Bank      2,00,000/-
     969774         Nil       Hong Kong Bank      2,00,000/-
     969775         Nil       Hong Kong Bank      1,00,000/-
 

3.According to the plaintiff, he deliberately omitted to mention the date of issue on the said cheques and it was agreed between the parties that the defendant would take the plaintiff into confidence before their presentation for encashment. Sometime in the second week of April.1996, the plaintiff desired to call off the deal and requested the defendant to return the said cheques. The defendant refused to return these cheques as a result whereof the plaintiff advised his bank to stop the payment. Pursuant to the plaintiff's advice,the aforesaid cheques were dishonoured on presentation. The defendant, after due service of a notice under Section 138 of the Negotiable Instrument Act (for short 'The Act') instituted a criminal case against the plaintiff in the court of the Metropolitan Magistrate,New Delhi. On these allegations, the plaintiff has asked for the following reliefs by his plaint;

"(a) Declare that the defendant is not entitled to any benefit on account of holding the cheques, more aptly mentioned in the plaint.

(b) Cancel the instrument more aptly described in the plaint and hold that the holder/in due course has title to the same.

(c) Permanently injunct the defendants or her agent, servant,authority from using, claiming any benefit by virtue of possessing the instruments."

4.By this application, the defendant seeks rejection of the plaint on the ground that the present suit is not maintainable under the provisions of the Specific Reliefs Act.

5. Admittedly, the plaintiff had issued the aforesaid cheques in favour of the defendant. A cheque is a negotiable instrument and under Section 9 of the Act the payee is the holder in due course. The defendant, as a holder of the said cheques, is entitled to their benefits. Section 72,73,75A and Section 84 of the Act are specific provisions which protect the interest of the payee under the cheque and also retain the liability of the drawer. Under Section 118(g) of the Act, the presumption is that the payee had given valuable consideration for the cheque issued in his favour; Under Section 139 of the Act, it is incumbent upon the Court to presume that the cheque issued was in discharge of debt or other liability. In the instant case, the rebuttable presumptions under Section 118(g) and 139 of the Act operate in favour of the defendant. It is also beyond the pale of controversy that these cheques were dishonoured on presentation, that the defendant had served a notice on the plaintiff under Section 138 of the Act, that the plaintiff had failed to respond to the said notice and that the plaintiff has instituted the present suit after institution of a criminal case against him under Section 138 of the Act. It is worth mentioning that under Section 64 of the Act, on default in presentation, the holder of a negotiable instrument is bound to loose his remedy against the drawer under the Act. Therefore, it was incumbent upon the defendant to present the said cheques for encashment.

6. These dishonoured cheques are also the foundation of the criminal case instituted by the defendant, against the plaintiff. Generally, in a suit for declaration, the court may determine the position as it stood on the date of the plaint. In the instant case the position was that the cheques were already used by the defendant much prior to the institution of the suit. Therefore, the declaration that the defendant is not entitled to the benefit under the cheques in question would now be worth nothing. That being so, this Court should not, in my view, exercise its discretion and grant the declaration which would be of no real effect. That apart, if the declaration sought for or the injunction is granted to the plaintiff, the defendant would perhaps be completely deprived of his legal remedies against the plaintiff. Judged from any angle, the plaintiff is not entitled to grant of declaration sought in the present suit. The declaratory reliefs No.(a) and (b) sought by the plaintiff cannot be granted as these cheques have already been used by the defendant and further the defendant as a holder of these cheques is entitled to their benefit.

7.The plaintiff has also claimed the relief of injunction restraining the defendant from using the said cheques. It has to be borne in mind that the present suit has been instituted after institution of a criminal case against the plaintiff under Section 138 of the Act. The reliefs claimed in this suit are in substance for an injunction restraining the defendant from prosecuting the criminal case instituted against the plaintiff. Section 41(b) of the Specific Relief Act denies to the Court the jurisdiction to grant an injunction restraining any person from prosecuting any proceedings in a Court. Consequently, the injunction sought by the plaintiff cannot be granted since it would have the effect of preventing the defendant from prosecuting the criminal case against the plaintiff.

8.As noticed earlier,the plaintiff has filed the present suit after institution of a criminal case against him under Section 138 of the Act. The reliefs which the plaintiff has asked appear to have been framed with a view to set up a defense during the trial of the said criminal case. What the accused under Section 138 of the Act would put as a defense during the trial cannot be gone into in a civil suit of instant nature. I am constrained to observe that the present suit is a gross abuse of the process of the Court. In K.K. Modi Vs. K.N. Modi , it was held that a proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. It was also observed that the Court has power to stop such proceedings summarily and prevent the time of public and the court from being wasted.

9.For the foregoing reasons the application is allowed and the plaint is rejected under order 7 Rule 11 C.P.C. The plaintiff shall pay the costs of the defendant and bear his own. Counsel's fee is quantified at Rs.5000/-.