Suresh Kumar Verma vs Dilip Kumar Gupta
2013 Latest Caselaw 4877 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 24th October, 2013

+             RFA 268/2013 & CM No.8499/2013 (for stay).

       SURESH KUMAR VERMA                      ..... Appellant
                  Through: Mr. Chandra Shekher Yadav, Adv.

                                   versus
    DILIP KUMAR GUPTA                         ..... Respondent

Through: Mr. Rajkumar Jain, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 23 rd March, 2013

of the learned Addl. District Judge-03 (East), Delhi for recovery of Rs.4 lacs

with interest and costs against the appellant pursuant to dismissal of the

application filed by the appellant for leave to defend the suit under Order

XXXVII of the CPC filed by the respondent.

2. Notice of the appeal was issued and the Trial Court record

requisitioned and subject to the appellant depositing the entire decretal

amount in this Court, execution was stayed. In compliance of the said

direction, a sum of Rs.4,30,000/- has been deposited which has been kept in

a fixed deposit.

3. The appeal was listed last on 22 nd October, 2013 when, finding the

same to be entailing a short question and being of the view that if ultimately

the appeal was to be allowed, the trial is to proceed, with the consent of the

counsels, final hearing of the appeal was commenced. However after some

argument, upon questions being put by this Court, the counsel for the

appellant/defendant sought adjournment and the hearing was adjourned to

today. The counsels have been heard further.

4. The respondent/plaintiff instituted the suit from which this appeal

arises, under Order 37 of the CPC, for recovery of Rs.5,04,000/- pleading:-

(a). that the parties were having cordial relation for a long time;

(b). that the appellant/defendant approached the respondent/plaintiff

for taking loan of Rs.4 lacs for a period of one year and to

which the respondent/plaintiff agreed;

(c). accordingly a sum of Rs.4 lacs was paid in cash by the

respondent/plaintiff to the appellant/defendant on 5 th March,

2011 and in consideration thereof the appellant/defendant

executed a promissory note-cum-receipt in the presence of

witnesses;

(d). that the appellant/defendant however failed to re-pay the loan

along with interest at 2% per month as agreed;

(e). that the appellant/defendant had earlier also taken a loan of Rs.1

lac from the respondent/plaintiff in the month of June, 2007 and

in discharge of his liability for that loan had issued a cheque in

favour of the respondent/plaintiff for the said amount of Rs.1

lac but the said cheque was also dishonoured for the reason of

insufficiency of funds in the bank account of the

appellant/defendant and the appellant/defendant had repaid the

said amount of Rs.1 lac in cash in instalments; and,

(f). that the respondent/plaintiff ultimately got served a legal notice

dated 3rd April, 2012 on the appellant/defendant with respect to

the amount of Rs.4 lacs but the appellant/defendant neither

repaid the loan with interest nor gave any reply to the legal

notice.

accordingly, on the basis of pronote cum receipt, the suit for recovery

of principal amount of Rs.4 lacs and Rs.1,04,000/- towards interest till the

date of institution of the suit was filed.

5. Summons for appearance and thereafter summons for judgment were

served on the appellant/defendant. The appellant/defendant applied for leave

to defend on the grounds:-

(i). denying that the appellant/defendant had borrowed any amount

of Rs.4 lacs from the respondent/plaintiff;

(ii). denying that the appellant/defendant had executed the pronote

cum receipt on the basis of which the suit was filed; and,

(iii). that the legal notice dated 3rd April, 2012 was not for filing a

Civil Suit but accusing the appellant/defendant of criminal

breach of trust and on the basis of said legal notice a Civil Suit

under Order 37 could not be filed.

though several other allegations, of the claim of the

respondent/plaintiff being mala fide, the respondent/plaintiff having

suppressed material facts and the suit being an act of extortion, were also

taken but no factual basis therefor was disclosed.

6. Needless to state that the respondent/plaintiff contested the application

for leave to defend, denying the grounds aforesaid on which leave to defend

was sought.

7. No rejoinder was filed by the appellant/defendant.

8. A perusal of the Trial Court record shows that the respondent/plaintiff

along with the plaint had filed the original pronote-cum-receipt (with

photograph of appellant/defendant affixed thereon) in which the

appellant/defendant acknowledged receipt of Rs.4 lacs and promised to re-

pay the same with interest at 2% per month. The respondent/plaintiff besides

the said pronote-cum-receipt also filed, photocopies of the Voter Identity

Card and the Driving License of the appellant/defendant contending that the

same were handed over by the appellant/defendant at the time of execution

of pronote-cum-receipt as proof of his identity, the dishonoured cheque for

Rs.1 lac and the copy of the legal notice preceding the suit and the postal

receipts of dispatch thereof.

9. The learned Addl. District Judge, vide the impugned order has

dismissed the application of the appellant/defendant for leave to defend and

decreed the suit, for the reasons:-

(A). that the denial by the appellant/defendant of his signatures on

the pronote-cum-receipt was unbelievable the photograph of the

appellant/defendant was also affixed as on the same and the

appellant/defendant has not disclosed as to how the

respondent/plaintiff came into possession of his photograph, if

not so affixed at the time of execution of the pronote-cum-

receipt.

(B). similarly the appellant/defendant had not explained as to how

the respondent/plaintiff came into possession of the photocopies

of the Voter Identity Card and the Driving License of the

appellant/defendant if these had not been handed over by the

appellant/defendant at the time of execution of the pronote or

receipt;

(C). that the appellant/defendant inspite of admitted receipt of the

legal notice preceding the suit, neither replied thereto nor filed

any complaint of the documents, on the basis whereof

allegation was made in the legal notice, having been fabricated.

however the decree was passed only of Rs.4 lacs with interest at 6%

per annum from the date of institution of the suit till the date of decree.

10. While issuing notice of the appeal, the reasons which prevailed with

the learned Addl. District Judge were expressly set out in the order.

11. As such when the hearing began on 22 nd October, 2013, it was

enquired from the counsel for the appellant/defendant as to what was his

challenge to the said reasons. The counsel for the appellant/defendant had

then sought adjournment for today.

12. Today the counsel for the appellant/defendant has argued:-

(I). that the signatures of the appellant/defendant on the pronote

cum receipt and on the cheque for Rs.1 lac are different and

have been forged;

(II). that the request of the appellant/defendant for sending the said

signatures to the Forensic Science Laboratory was not allowed;

(III). that the appellant/defendant can produce a certificate from his

bank to the effect that the signatures on the pronote-cum-receipt

are not of the appellant/defendant (the counsel for the

appellant/defendant at this stage interjects and states that the

appellant/defendant admits his signatures only on the cheque

for Rs.1 lac);

(IV). that the affidavit of the witness to the pronote namely Sh.

Vikram Singh, to the effect that the appellant/defendant had not

executed the pronote can be filed; and,

(V). that the said Sh. Vikram Singh and the appellant/defendant

work in the same office and the appellant/defendant had handed

over his photograph and the photocopies of his Voter Identity

Card and Driving License to the said Sh. Vikram Singh to

obtain a insurance policy (on enquiry it is stated that the said

Sh. Vikram Singh is not an insurance agent but his wife is an

LIC agent).

13. It has been enquired from the counsel for the appellant/defendant

whether any application was filed before the learned Addl. District Judge for

sending the document for forensic examination.

14. The counsel for the appellant/defendant states that such request was

orally made.

15. It has further been enquired from the counsel for the

appellant/defendant whether the appellant/defendant in the memorandum of

appeal has pleaded that such a request was made.

16. The answer is again in the negative. Rather, the counsel states that

unfortunately he was not the Advocate for the appellant/defendant in the

Trial Court and thus could not so advise the appellant/defendant.

17. It has next been enquired whether not that means that the aforesaid

plea is a figment of the imagination of the present counsel, between 22nd

October, 2013 and today. The counsel has candidly admitted so.

18. The counsel further admits that the affidavit of Sh. Vikram Singh,

who is the witness to the pronote, has been obtained now only and on 16th

April, 2013. However the counsel admits that neither was it filed along with

the appeal which is dated 3rd May, 2013 nor is there any reference to such

affidavit in the memorandum of appeal.

19. The explanation given by the counsel for the appellant/defendant for

the respondent/plaintiff's custody of the photograph and documents of

identity of the appellant/defendant is the same--that it is the counsel who

has now advised the said pleas to the appellant/defendant.

20. Needless to state that none of the arguments raised were before the

learned Addl. District Judge and cannot be a ground to challenge the

judgment. Even in the memorandum of appeal, the case now argued has not

been set up. Mere engagement of a new counsel cannot allow the litigant to

take new factual pleas which are the result of the professional acumen of the

new counsel.

21. The counsel for the respondent/plaintiff has argued that the inaction

on the part of the appellant/defendant after the receipt of the legal notice

shows that the denial of the pronote-cum-receipt in the leave to defend

application as well as the pleas now taken are afterthought.

22. The counsel for the appellant/defendant in rejoinder has contended

that leave to defend ought to be granted merely on denial of signatures on

the documents on the basis of which the suit is filed.

23. I am unable to agree. A mere denial of signatures on the document on

the basis of which the suit is filed cannot be a ground for grant of leave to

defend, converting a suit of the nature for which a summary procedure has

been provided in law, into an ordinary/regular suit. If the same were to be

done, considering the manner in which pleas are taken in the Courts, no

claim can be allowed under the summary procedure. Whenever a defendant

in a suit under Order 37 of the CPC denies his signatures, he has to satisfy

the Court that such denial is bona fide. The appellant/defendant in the

present case, in the face of the documents filed along with the suit, ought to

have explained as to how the respondent/plaintiff came into possession of

his photograph and the copies of the documents of his identity. No error can

thus be found in the judgment of the learned Addl. District Judge. In

addition thereto I may add that it was the express plea of the

respondent/plaintiff of there being an earlier loan transaction also between

the parties and in support whereof the dishonoured cheque of Rs.1 lac was

filed. The said pleas remained uncontroverted in the leave to defend

application and are to be deemed to have been admitted by the

appellant/defendant. The counsel for the appellant/defendant has today in

Court expressly admitted the signatures on the dishonoured cheque of Rs.1

lac and has further stated that the said amount was subsequently paid by the

appellant/defendant to the respondent/plaintiff in cash. The same fortifies

that there were other transactions, in cash between the parties and which also

satisfies the judicial conscience of this Court as to the claim of the

respondent/plaintiff.

24. There is no merit in the appeal; the same is dismissed. However, the

appeal having been disposed of expeditiously, I refrain from imposing any

cost on the appellant/defendant.

25. The amount deposited by the appellant/defendant in this Court be now

forthwith released to the respondent/plaintiff.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

OCTOBER 24, 2013 pp