Naresh Kumar Jain vs Lallan Shah
2017 Latest Caselaw 6931 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.1002/2017

                                     Reserved on: 29th November, 2017
%                                  Pronounced on: 4th December, 2017

NARESH KUMAR JAIN                                       ..... Appellant
                 Through:                Mr. Sunil K. Jain, Advocate
                                         with Mr. Anil K. Aggarwal,
                                         Advocate.
                          versus
LALLAN SHAH                                            ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

C.M. Nos. 43487/2017 (exemption) & 43489/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M.s stand disposed of.

C.M. No.43491/2017 (for condonation of delay)

2. For the reasons stated in the application, delay of 262

days in filing the appeal is condoned.

C.M. stands disposed of.

RFA No.1002/2017 and C.M. Nos.43488/2017 (stay) & 43490/2017 (under Order XLI Rule 27 CPC)

3. This Regular First Appeal filed under Section 96 of Code

of Civil Procedure, 1908 (CPC) impugns the judgment of the Trial

Court dated 5.12.2016 by which the trial court has dismissed the leave

to defend application filed by the appellant/defendant under Order

XXXVII Rule 3(5) CPC in the suit filed by the respondent/plaintiff for

recovery of Rs.6,28,889.34/- along with interest

4. The facts of the case are that the respondent/plaintiff filed

the subject suit for recovery of Rs.6,28,889.34/- along with interest

pleading that respondent/plaintiff was in the business of metal scrap,

waste paper etc under the name and style of Krishna Trading Co. It

was pleaded that on 15.1.2011, the appellant/defendant purchased

3,920 kg of aluminium scrap from the respondent/plaintiff at a price of

Rs.111.90 per kg plus 5% VAT totalling to Rs.4,60,580.40/-. The

scrap supplied by the respondent/plaintiff to the appellant/defendant

was acknowledged by the appellant/defendant on 15.1.2011 itself and

the appellant/defendant for payment issued two post dated cheques.

One cheque was for Rs.2 lacs dated 15.4.2011 and the other cheque

was for an amount of Rs.2,60,580 dated 30.4.2011. Both the cheques

when presented were dishonoured resulting in respondent/plaintiff

filing the complaint under Section 138 of the Negotiable Instruments

Act, 1881. Respondent/plaintiff served a legal notice upon the

appellant/defendant dated 25.5.2013, and thereafter filed the subject

suit.

5. In the leave to defend application filed by the

appellant/defendant it was pleaded that the appellant/defendant had

nothing to do with the respondent/plaintiff and the subject cheques

were never given to the respondent/plaintiff. It was pleaded by the

appellant/defendant that the subject cheques were given to one Sh.

Brij Bhushan as the appellant/defendant was pressurized to give some

pre-signed blank cheques to the said Sh. Brij Bhushan. However the

matter was pleaded to have been settled between the

appellant/defendant and Sh. Brij Bhushan whereby Sh. Brij Bhushan

agreed and admitted that there is no due against the

appellant/defendant. This agreement was supported by the letters

accordingly written by Sh. Brij Bhushan in his hands bearing his own

signatures. The subject cheques were given to Sh. Brij Bhushan as

security which were to be returned after settlement but Sh. Brij

Bhushan failed to do so and it is pleaded in the leave to defend

application that it appears said Sh. Brij Bhushan had handed over the

subject cheques to the respondent/plaintiff who has misused them and

filed the subject suit.

6. I may note that in the impugned judgment trial court has

arrived at a wrong conclusion of fact that the letters of Sh. Brij

Bhushan were not filed by the appellant/defendant with his leave to

defend application, though appellant/defendant had, however, the

same would have no bearing to the other reasoning and conclusions

given in the impugned judgment by which the leave to defend

application of the appellant/defendant has been rightly dismissed.

Trial court in my opinion is justified in dismissing the leave to defend

application because in the statement recorded by the

appellant/defendant in the Section 138 of Negotiable Instruments Act

proceedings, the appellant/defendant on 15.2.2013 in response to a

court question stated that cheques in question bear the signatures of

the appellant/defendant and that the appellant/defendant did not know

how the cheques came to the possession of the complainant (i.e

plaintiff in the subject suit), whereas a different stand was taken in the

leave to defend application filed by the appellant/defendant that the

subject cheques were given to Sh. Brij Bhushan and not to the

respondent/plaintiff and that Sh. Brij Bhushan appeared to have

illegally given the subject cheques to the respondent/plaintiff. Trial

court in my opinion also rightly held that the appellant/defendant was

served in the suit on 26.7.2013 but till the disposal of the leave to

defend application on 5.12.2016 it is no where the case of the

appellant/defendant that he has initiated any action against Sh. Brij

Bhushan for failing to return the cheques or misusing the cheques by

giving the same to the respondent/plaintiff. Trial court has further

rightly held that it is difficult to believe that the appellant/defendant

would not have taken action against Sh. Brij Bhushan in case his plea

was correct that the cheques were wrongly given by Sh. Brij Bhushan

to the respondent/plaintiff.

7. I have further put a query to the counsel for the

appellant/defendant that if assuming there were disputes between the

appellant/defendant and Sh. Brij Bhushan and which were later on

sorted, and that on such agreement/settlement Sh. Brij Bhushan had to

return the cheques to the appellant/defendant then why the

appellant/defendant at the time of the alleged compromise with Sh.

Brij Bhushan way back in the January, 2011 did not take back the

cheques and thereafter till the subject suit was filed in the year 2014 and

even till the leave to defend application was disposed of on 5.12.2016,

with the fact that no legal action whatsoever was initiated by the

appellant/defendant against Sh. Brij Bhushan for alleged illegal retention

of the cheques, and to this court query the counsel for the

appellant/defendant had no answer.

8. Therefore it is seen that the cheques are the cheques of the

appellant/defendant. The cheques do bear the signatures of the

appellant/defendant. The appellant/defendant pleaded that the cheques

were given in blank to Sh. Brij Bhushan but this defence has been rightly

found by the trial court to be a complete moonshine and this Court has

given an additional reason that if there was a compromise between Sh.

Brij Bhushan and the appellant/defendant, then, there was no reason why

at the time of compromise, the appellant/defendant would not have taken

the cheques from Sh. Brij Bhushan way back in January, 2011. The leave

defend application was thus rightly dismissed by the impugned

judgment.

9. In view of the above there is no merit in the appeal.

Dismissed.

DECEMBER 04, 2017/Ne                          VALMIKI J. MEHTA, J