Delhi High Court
Smt. Pushpa vs Mr. Vibhu Gupta on 24 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No. 58/2014
% 24th July , 2014
SMT. PUSHPA ......Petitioner
Through: Mr. Anuj Kumar Garg, Advocate.
VERSUS
MR. VIBHU GUPTA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This revision petition under Section 115 of Code of Civil
Procedure, 1908 (CPC) is filed by the petitioner/defendant against the
impugned order of the court below dated 17.2.2014 by which the court
below has dismissed the application under Order 37 Rule 4 CPC for setting
aside the judgment and decree dated 30.7.2012 which was passed on account
of non-filing of the leave to defend application by the petitioner-defendant.
2. The facts of the case are that respondent-plaintiff filed the
subject suit under Order 37 CPC for recovery of loan of Rs.4 lacs alongwith
interest on the ground that petitioner-defendant from October 2010 to April
C.R.P.58/2014 Page 1 of 6
2011 was given a friendly loan of Rs.4 lacs for a period of two months, and
for which purpose, a promissory note dated 12.4.2011 was executed by the
petitioner-defendant besides handing over two cheques bearing no. 322740
and 322741 drawn on Oriental Bank of Commerce, Chandni Chowk, Delhi
for Rs.2 lacs each. As per the plaint the petitioner-defendant assured that the
cheques will be cleared on presentation. It however transpired that the
petitioner-defendant had not even entered the account number in the
cheques, and therefore, the cheques could not be presented. After serving the
legal notice dated 7.9.2011, the subject suit for recovery was filed.
3. The defendant-petitioner was served through the process server
on 4.5.2012 through her son Nikhil. Since no leave to defend application
was filed the suit was decreed because once no application for leave to
defend is filed the contents of the plaint are deemed to be admitted and
decree is passed under Order 37 CPC.
4. The petitioner-defendant filed the subject application under
Order 37 Rule 4 CPC claiming that she became aware of the decree only on
10.1.2013 when she received notice of the execution proceedings.
Petitioner-defendant pleaded that the signatures on the AD card were not of
her son Nikhil and those signatures were forged and fabricated. On merits, it
was urged that the loan which was taken was not a loan of Rs.4 lacs by the
C.R.P.58/2014 Page 2 of 6
petitioner-defendant but the transaction was of two loans of Rs. 36,500/-each
on 8.4.2011 and 30.4.2011taken by the husband of the petitioner-defendant.
It is claimed that husband of the petitioner-defendant paid an amount of Rs.
37,000/-, but the respondent-plaintiff did not return the cheques, and
therefore a complaint was filed to the police on 13.6.2011. It was also
contended that the promissory note was stated to be 'on demand' but has
been executed only on 12.4.2011 for the loan which was admittedly given
between October, 2010 and April, 2011, and therefore, there could not be
one promissory note in April, 2011 for the loans given during October 2010
to April 2011. It was also contended before this Court that the legal notice
dated 7.9.2011 has been wrongly sent to the address at Ajmer as per the
report which has been taken from the website of the Indian Postal
Department.
5. In my opinion, there is no illegality in the impugned order and
the present petition is totally misconceived and liable to be dismissed. The
reasons are stated hereinafter.
6. Firstly, as regards the contention that the signatures of the son
Nikhil of the petitioner-defendant are forged and fabricated on the AD card
is concerned, the trial court notes that the petitioner-defendant was not
served by registered AD post but was served through the process server. On
C.R.P.58/2014 Page 3 of 6
realizing this mistake petitioner-defendant wanted to cover up her case by
arguing orally that registered post was directed to be filed but was not filed
and hence there is no service. On this aspect the trial court notes that once
service is completed by one mode it makes no difference if answer mode
directed for service was not followed. Trial court also notes that the process
server has affirmed on oath with respect to the service, and therefore, there
does not seem to be any reason to disbelieve the same.
7. So far as the argument that the promissory note has been
executed on 12.4.2011 with respect to loans given during October 2010 to
April 2011 is concerned, I do not think that there is anything strange about it
because after totaling of the loans it is perfectly possible that a promissory
note is executed for the total amount of the loans. Therefore, I do not find
any illegality or lack of credibility in the promissory note executed by the
petitioner/defendant.
8. The next arguments urged on behalf of the petitioner-defendant
was that the loan was taken not by her but by her husband of two amounts of
Rs.36,500/- each on 8.4.2011 and 30.4.2011, and the amounts were repaid
by the husband of the petitioner/defendant but the cheques were not returned.
I note that there is no proof filed on record even with respect to the returning of
the alleged loan by the husband of the petitioner/defendant even for the
C.R.P.58/2014 Page 4 of 6
amounts of Rs. 37,000/- as pleaded overlooking the fact that even as per
petitioner/defendant the total amount of loan was Rs.36,500/- plus Rs.
36,500/-. Clearly therefore, only a false story was pleaded to avoid the
obligation of repayment under the transaction of loan and the complaint
made to the police on 13.6.2011 was a manipulated complaint because the
petitioner-defendant knew that payment was to be made within two months
and thus the petitioner/defendant wanted to create evidence as a defence to
the suit which would be filed on non-payment of the loan. In this regard I
may note that the court below has also noted that why should cheques of
Rs.36,500/- plus Rs.36,500/- be returned by the respondent-plaintiff when
admittedly as per the petitioner-defendant, the husband of the petitioner-
defendant had allegedly returned only Rs. 37,000/-. Also, as already stated
above, there is no proof of payment of this Rs. 37,000/- which is
conveniently stated to be in cash without being supported by any document.
This argument therefore of the petitioner-defendant thus totally lacks any
substance and is accordingly rejected.
9. It was finally argued that the legal notice dated 7.9.2011 by the
respondent/plaintiff was sent at the wrong address at Ajmer, however, this
argument is found to be totally frivolous because the postal receipts of the
speed post and registered post receipts show different registered post number
C.R.P.58/2014 Page 5 of 6
than the report downloaded from the website of the postal department, and
which pertains to a different registered article. Clearly, therefore, the
petitioner-defendant is not stating the correct facts. In any case, service of
legal notice before the suit has no bearing with respect to entering
appearance after being served of the summons of the suit under Order 37
CPC.
10. In view of the above, there is no merit in the petition and the
same is therefore dismissed with costs of Rs.15,000/- which shall be paid to
the Delhi High Court Legal Aid Services Committee within a period of four
weeks from today.
11. List before the Registrar on 24th August, 2014 for ensuring
order of compliance of costs and if costs are not deposited, the Registrar
General will be entitled to initiate proceedings to recover the costs as arrears
of land revenue.
JULY 24, 2014/ib VALMIKI J. MEHTA, J.
