Suresh Shokeen vs Babli
2012 Latest Caselaw 3687 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.251/2012

%                                                              1st June, 2012

SURESH SHOKEEN                                                ...... Appellant
                            Through:         Mr. Akil Rataeeya, Advocate.


                            VERSUS

BABLI                                                    ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.10603/2012 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of

+ RFA No.251/2012 and C.M. No.10602/2012 (stay)

1. Ingenuity of persons who take loans and thereafter use every

conceivable means to dispute and deny return of loans is replete in various

litigations in this country. The present appeal is one such litigation.

2. What is urged on behalf of the appellant/defendant that the

impugned judgment and decree passed in the suit filed under Order 37 of

the Code of Civil Procedure, 1908 (CPC) by dismissing leave to defend

application is liable to be set aside as the suit was not maintainable under

Order 37 CPC inasmuch as the cheque in question was not issued by the

appellant/defendant. This argument however misses out a vital aspect of

law that consideration payable under a contract need not flow only between

parties to a contract.

3. The facts of the case are that admittedly the

appellant/defendant was given loan by respondent/plaintiff totaling to Rs.

17,30,000/- by means of the following cheques:-

S. No.   Cheque          Date              Amount         Bank
         No.
1.       346681          23/10/2004        1,80,000/-     Punjab National Bank,
                                                          Najafgarh    Branch,
                                                          Delhi
2.       346682          11/11/2004        13,00,000/-    -do-

3.       346684          24/12/2004        50,000/-       -do-

4.       614767          16/11/2004        2,00,000/-     State Bank of Patiala,
                                                          Delhi

There is no dispute that the amounts of the aforesaid cheques

were in fact credited to the account of the appellant/defendant. These

cheques were given because the appellant/defendant had friendly relations

with the respondent/plaintiff, and had requested for a loan because he had

to invest in different plots/properties. The allurement given by the

appellant/defendant to pay interest of Rs. 24,000/- per month led to grant of

the loan and consequent harassment of the respondent/plaintiff.

4. The subject suit came to be filed on the basis of a cheque

given by the appellant/defendant dated 7.6.2007 for a sum of Rs. 16 lacs

and which was dishonoured on presentation.

5. Trial Court has made the following observations in the

impugned judgment for dismissing leave to defend application:-

"9. I have seen the suit of the plaintiff, application for leave to defend and reply and perused the documents filed and my inference on the basis of these are that suit of the plaintiff against defendant for recovery of ` 18 lacs on the basis of cheque be decreed with cost and interest @ 9% per month from the date of filing of the suit till amount recovered dismissing the application of defendant for leave to defend on following grounds:-

i)In the plaint in para 4 plaintiff has mentioned that plaintiff has issued cheque of ` 17,30,000/-. Plaintiff has reiterated the same facts in the application for summon of judgment u/s 37 of CPC. Defendant in his application for leave to defend has not denied this fact. Hence the fact that the plaintiff gave cheque of ` 17,30,000/- to the defendant which was duly credited to the account of defendant stands proved. Plaintiff has placed on record the examination in chief and cross examination in the complaint case bearing no.332/08, PS Najafgarh dtd 11/1/2012 wherein he states "she also invest in property alongwith me. The share of accused was not fixed. It is correct that accused had given me cheques of ` 12-15 lacs which all were cleared in my account in PNB, Najafgarh, Branch. It is correct that I had never given cheque payment to the accused...." This cross examination shows that defendant has deposed on oath that plaintiff has given cheque of ` 12 to 15 lacs which were cleared and deposited in the account of defendant in PNB, Najafgarh Branch. Why plaintiff has given this amount and how amount is to be returned to the plaintiff has not

been explained by defendant. Defendant has failed to show substantiate defence as alleged. Defence on the face of it appears to be frivolous and vactitious. This proves the fact that plaintiff has given an amount of ` 17,30,000/- and defendant has promised to give ` 18 lacs in total alongwith interest and gave a cheque of ` 16 lacs. In view of these admitted facts I find no merit in the application u/o 37 Rle 7(3) CPC. Application of defendant u/o 37 CPC dismissed. Suit of the plaintiff against defendant for recovery of ` 16 lacs is decreed u/o 37 Rule 6(a) CPC with cost and interest @ 9% per month from the date of filing of the suit till amount recovered. Decree sheet be prepared accordingly. File be consigned to record room." (underlining added)

6. The only argument on behalf of the appellant/defendant before

this Court is that the suit is not maintainable under Order 37 CPC as the

cheque which was given was not of the appellant/defendant but of one Mr.

Alok Yadav. Under the Contract Act, 1872 consideration is defined under

Section 2(d) as under:-

"Section 2(d). When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstaining from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise." (emphasis added)

A reading of the aforesaid definition shows that the

consideration to a contract need not flow only between the parties to the

contract but consideration can be given by someone else who is not a party

to the contract. Therefore, merely because the appellant/defendant chose to

give not his own cheque but cheque of Sh. Alok Yadav would not mean

that the suit is not maintainable in view of the fact that admittedly the

cheque was dishonoured and the record of the suit clearly shows that the

appellant/defendant in fact received the amount of loan of ` 17,30,000/-.

Trial Court has also referred to the suggestions put on behalf of the

appellant/defendant in proceedings under Section 138 of the Negotiable

Instrument Act, 1881 which show that the appellant/defendant in fact did

receive the amount of loan.

7. It is settled law vide M/s Mechalec Engineers &

Manufacturers vs. M/s Basic Equipment Corporation Ltd. AIR 1977 SC

577 that defences which are moonshine cannot entitle leave to defend.

Obviously, appellant/defendant is trying to play clever by half in using all

methods to somehow or the other avoid repayment of loan which he had

taken.

8. In view of the above, there is no merit in the appeal which is

accordingly dismissed. No costs.

VALMIKI J. MEHTA, J JUNE 01, 2012 Ne