M/S Kalyani Surgical And Medical ... vs M/S Cachet Pharmaceuticals Pvt. ...
2016 Latest Caselaw 2903 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 22nd April, 2016.

+                              RFA 111/2015

       M/S KALYANI SURGICAL AND MEDICAL STORE..Appellant
                    Through: Mr. S.K. Dayal, Adv.

                                   Versus

    M/S CACHET PHARMACEUTICALS PVT. LTD. ...Respondent

Through: Mr. Govind Rishi, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 impugns the judgment and money decree dated 27th November, 2014 of

the Court of Additional District Judge (ADJ)-02, (North), Rohini Courts,

Delhi in CS No.765/2014 filed by the respondent / plaintiff under Order

XXXVII of the Civil Procedure Code, 1908 (CPC) consequent to the

dismissal of the joint application for leave to defend of the appellant /

defendant, a partnership firm of whom Sh. Ram Gopal Sharma and Sh. Asha

Ram Sharma are partners.

2. Trial Court record was requisitioned and notice of the appeal was

issued and subject to the appellant / defendant depositing Rs.10 lacs in this

Court and which has been deposited, execution was stayed. Though the

respondent / plaintiff was permitted to withdraw the amount deposited

subject to furnishing security but has not done so.

3. Admit.

4. Considering that in the event of the appeal succeeding, after granting

leave to defend to the appellant / defendant the matter will have to be

remanded to the Trial Court for trial, the appeal, with consent of the

counsels, has been taken up for hearing today itself. The counsels have been

heard and the Trial Court record perused.

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

arises, as aforesaid under Order XXXVII of the CPC, pleading i) that the

respondent / plaintiff which is a manufacturer of medicine was supplying the

same to the appellant / defendant engaged in the business of retail sale of

medicine and surgical goods and used to supply medicines / goods to the

appellant / defendant on credit; ii) that the appellant / defendant during the

period December, 2011 to March, 2012 placed several purchase orders on

the respondent / plaintiff and made part payments therefor from time to time;

iii) that the respondent / plaintiff in the month of May, 2012 asked the

appellant / defendant to clear the outstanding amount of Rs.15,57,408/- and

upon the appellant / defendant asking for particulars of the said demand,

furnished a copy of its ledger to the appellant / defendant and the appellant /

defendant in acknowledgment of the correctness thereof put its stamp with

signatures thereon; iv) that the appellant / defendant out of the aforesaid

amount due, paid a sum of Rs.1,00,000/- vide cheque dated 29th June, 2012

and subsequently paid the balance amount vide cheque dated 11 th August,

2012 for Rs.14,57,408/-; v) that while the cheque for Rs.1,00,000/- was

encashed, the cheque for Rs.14,57,408/- was returned dishonoured with the

endorsement "exceeds arrangement"; vi) that the respondent / plaintiff got

issued a legal notice dated 4th September, 2012 to the appellant / defendant

but the appellant / defendant inspite of receipt thereof failed to reply thereto;

vii) that the respondent / plaintiff instituted a complaint of the offence under

Section 138 of the Negotiable Instruments Act, 1881 (NI Act) against the

appellant / defendant and which was pending; viii) that though the appellant /

defendant as per the commercial rate of interest was entitled to interest at

20% per annum but was restricting the claim for interest 15% per annum

since 11th August, 2012 till the institution of the suit amounting to

Rs.3,49,778/-; ix) that accordingly the suit for a total sum of Rs.18,07,186/-

under Order XXXVII of the CPC on the basis of the cheque was being filed.

6. The appellant / defendant sought leave to defend not denying the

relationship as averred by the respondent / plaintiff but pleading; i) that the

plea of the respondent / plaintiff of the appellant / defendant having issued

the cheque was false, frivolous and concocted; ii) there was continuous

business transaction between the parties since the year 2004; iii) that in the

year 2008 upon the respondent / plaintiff agreeing to supply goods /

medicine to the appellant / defendant on credit, the appellant / defendant had

given some blank signed cheques in which only the name of the respondent /

plaintiff was filled up as security in lieu of credit facility; iv) that from the

month of December, 2011 to April, 2012, the appellant / defendant has not

placed / booked any order regarding purchase of medicines / surgical goods

on the respondent / plaintiff; v) that the appellant / defendant did not receive

any goods from the respondent / plaintiff between December, 2011 to April,

2012; vi) that the purchase orders purportedly issued by the appellant /

defendant filed by the respondent / plaintiff along with the plaint do not bear

the signature and rubber stamp of the appellant / defendant and the

respondent / plaintiff had forged the same; vii) that the respondent / plaintiff

had forged the cheque by putting the figures and amounts and by presenting

the same for payment; viii) that the appellant / defendant had not furnished

the subject cheque to the respondent / plaintiff in discharge of any liability;

ix) that the suit of the respondent / plaintiff was false.

7. The learned ADJ has refused leave to defend to the appellant /

defendant and decreed the suit finding/observing/holding i) that the defence

taken up by the appellant / defendant was not plausible and could not be

substantiated; ii) the respondent / plaintiff has placed on record all the

invoices reflecting outstanding amounts; iii) that before filing of the suit, a

notice has been served on the appellant / defendant but the appellant /

defendant had not pleaded to have sent any reply thereto; iv) that if the

cheque was given as a security as claimed by the appellant / defendant, the

appellant / defendant ought to have replied to the legal notice; v) that through

the appellant / defendant has alleged forgery by the respondent / plaintiff but

had not taken any civil or criminal action with respect thereto; vi) that the

plea taken by the appellant / defendant in the application for leave to defend

was sham, moonshine and illusory within the meaning of M/s Mechalec

Engineers & Manufacturers Vs. M/s Basic Equipment Corporation Ltd.

AIR 1977 SC 577.

8. The counsel for the appellant / defendant has at the outset contended

that the suit from which this appeal arises was filed by the respondent /

plaintiff after knowing the defence of the appellant / defendant from the

statement made by the appellant / defendant in the complaint of offence

under Section 138 of the NI Act. However, on enquiry as to how the same

has prejudiced the appellant / defendant and how can that be a bar to

simultaneous maintainability of proceedings under both civil and criminal

law, as has been held by Courts, no reply is forthcoming.

9. It is then contended that the appellant / defendant has along with the

appeal filed a reply sent to the legal notice. However on enquiry, it is

frankly admitted that it was not so pleaded in the leave to defend application

and no copy of the reply was filed along with the leave to defend application.

Even before this Court only copies of the reply and postal receipt are filed

and the counsel for the appellant / defendant on enquiry states that the said

reply was sent by an advocate who was not the advocate for the appellant /

defendant before the Trial Court or the advocate for the appellant / defendant

before this Court and the original of the postal receipt would be with the

advocate only and that though the appellant / defendant attempted to get the

original but could not receive the original.

10. It is further argued that while the respondent / plaintiff in the

complaint of offence under Section 138 NI Act was claiming a sum of

Rs.14,57,408/- to be due but in the plaint pleaded an outstanding of

Rs.15,57,408/-. There is no inconsistency. A complaint of offence under

Section 138 NI Act is concerned only with the dishonoured cheque; however

in the civil suit, the consideration was which cheque was issued and the

accounts have been explained.

11. Else, the same plea as taken in the leave to defend, of the cheque

having been given by way of security, has been repeated.

12. The counsel for the respondent / plaintiff has contended that while the

appellant / defendant in the statement in the complaint case supra stated that

the cheque was given by way of security in 2011-12, in the leave to defend

pleaded that the same was given in the year 2008 and the said inconsistency

alone shows the falsity of the ground on which the appellant / defendant

sought leave to defend.

13. Having considered the matter, I am unable to take a view different

from that taken by the learned ADJ on the averments as contained in the

application for leave to defend. The appellant / defendant cannot be

permitted to now as an afterthought contend that the reply to the legal notice

was sent when the same was admittedly not the ground pleaded in the leave

to defend and that too without even producing the original proof even now of

having sent the same. The possibility of the appellant / defendant shying

from producing the original for the reason not wanting to face prosecution in

the event of the document turning out to be forged, cannot be ruled out.

14. There is no inconsistency in the stand of the respondent / plaintiff. The

respondent / plaintiff was in the complaint case required to confine itself to

the cheque amount only and has in the civil suit stated the total amount

which was due and part payment whereof was made by cheque dated 29th

June, 2012 for Rs.1,00,000/-.

15. The appellant / defendant in the leave to defend application did not

deny the payment of Rs.1,00,000/- vide cheque dated 29th June, 2012. The

appellant / defendant is deemed to have admitted the said averment in the

plaint which was not controverted. Once that is so, the same demonstrates

the falsity of the other defence taken in the leave to defend. If no amount

was due from the appellant / defendant and no purchase orders had been

placed, it belies reason why the appellant / defendant would pay the sum of

Rs.1,00,000/- shortly before the date of the cheque subject matter of the

present suit. Similarly, if the transactions of sale purchase between the

parties had ceased in the year 2011 as was the ground in the leave to defend

application, there is no reason why the appellant / defendant should not have

taken back the cheque from the respondent / plaintiff. It was not even the

case that any attempt in this regard was made. Though it was vaguely

pleaded that the cheque was given as security but the appellant / defendant

did not show the number of the cheque book currently being issued or plead

or prove that the cheque on the basis whereof the suit was filed was of a

series as was prevalent in the year 2008 when the cheque was claimed to

have been given.

16. There is thus no merit in the appeal; the same is dismissed with costs;

counsels fee computed at Rs.7,500/-.

17. Decree sheet be prepared.

18. The amount lying deposited in this Court together with interest

accrued thereon be released to the respondent / plaintiff / decree holder.

19. The respondent / plaintiff / decree holder shall be entitled to execute

the decree for the balance amount due.

RAJIV SAHAI ENDLAW, J.

APRIL 22, 2016 „gsr‟