Jugnu Bhardwaj vs Shiv Kumar @ Bhola
2017 Latest Caselaw 3201 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 610/2017

%                                                        12th July, 2017

JUGNU BHARDWAJ                                           ..... Appellant
                          Through:       Mr. Hemant Arya and Mr.
                                         Mohan Kaushik, Advocates.

                          versus

SHIV KUMAR @ BHOLA                                       ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

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

Procedure, 1908 (CPC) is filed by the appellant/defendant against the

impugned judgment of the trial court dated 28.3.2017 by which the

trial court has dismissed the leave to defend application filed by the

appellant under Order XXXVII Rule 3 CPC and consequently decreed

the suit for an amount of Rs.3,50,000/- along with interest at the rate of

8% per annum.

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

the subject suit pleading that the appellant/defendant was extended a

loan of Rs.3,50,000/- by the respondent/plaintiff on 22.11.2015. This

original loan agreement dated 22.11.2015 was lost and thereafter the

second loan agreement was executed on 19.4.2016 by the

appellant/defendant acknowledging his liability to pay the loan

amount.

3. Respondent/plaintiff before filing the suit sent a legal

notice dated 23.5.2016 by registered post to the appellant/defendant

and since this failed to yield the desired result the subject suit was

filed.

4. In the leave to defend application filed by the

appellant/defendant it was pleaded that the respondent/plaintiff had got

signed a promissory note from the appellant/defendant in collusion

with the Advocate of the appellant/defendant Sh. Haritmani

Gauracharya and who was the Advocate of the appellant/defendant in

some other litigation with Sh. Ravi Kumar. It was pleaded that no loan

was taken by the appellant/defendant and since the promissory note

was the result of fraud being played upon on the appellant/defendant

hence the suit was liable to be dismissed.

5. I may note that there is no promissory note as pleaded by

the appellant/defendant in the leave to defend application because the

document in question is in fact a loan agreement dated 19.4.2016 and

as conceded before this Court by counsel for the appellant/defendant.

6. The issue is that whether the appellant/defendant did not

execute the loan agreement dated 19.4.2016 and this loan agreement

was the result of the fraud being played upon the appellant/defendant

in collusion with his Advocate who was engaged in another litigation.

7. In my opinion, the court below has rightly rejected this

moon shine defence of the appellant/defendant that the loan agreement

was got signed by playing a fraud because it is seen that the loan

agreement is of three pages. On each page of the loan agreement the

appellant/defendant has not only signed but has also put his thumb

impressions. The place of putting of the thumb impressions and

signatures on each page of the loan agreement is at different places in

the three pages of the loan agreement. Most importantly, the first page

of the loan agreement is a stamp paper where the signatures and the

thumb impressions of the appellant/defendant exist. This Court

accordingly disbelieves that a litigant would sign a stamp paper in

blank allegedly because of a fraud by an Advocate in a different

litigation. It may be a remote chance which is possible that some blank

papers are signed by an Advocate and kept, however, this defence

raised by appellant/defendant in this case is completely a moon shine

defence because a stamp paper was signed by the appellant/defendant

and which stamp paper in fact is the first page of the loan agreement.

8. It is also required to be noted that the appellant/defendant

did receive a legal notice dated 23.5.2016, inasmuch as, in the leave to

defend application it is not disputed that the legal notice sent to the

appellant/defendant dated 23.5.2016 was not received by the

appellant/defendant. Counsel for the appellant/defendant however

argued that since the suit was filed before the expiry of the period of

fifteen days given to send the reply to the legal notice and hence reply

was not given, however, admittedly, this defence is not the plea raised

in the leave to defend application.

9. The court below has also rightly noted that the complaint

filed by the appellant/defendant to the police with respect to fraud

being perpetuated upon him is in fact of one day after filing of the suit

and the fact that the complaint filed against the Advocate to the Bar

Council of Delhi is bereft of any particulars of fraud.

10. I would also like to note that the appellant/defendant in

the leave to defend application has not stated that what was the nature

of the litigation of the appellant/defendant with Sh. Ravi Kumar, and in

which litigation fraud was perpetuated upon the appellant/defendant by

taking his signatures on the loan agreement dated 19.4.2016. In fact not

only no particulars are given of the litigation with Sh. Ravi Kumar and

even pleadings of the litigations with Sh. Ravi Kumar are not filed. It is

noted that in the leave to defend application there is no mention of

even the name of the Sh. Ravi Kumar or any litigation with Sh. Ravi

Kumar.

11. It is therefore clear that the appellant/defendant is taking

up a totally dishonest and a moon shine defence and that the leave to

defend application of the appellant/defendant was thus rightly

dismissed by the court below.

12. There is no merit in the appeal and the same is therefore

dismissed.

JULY 12, 2017                                 VALMIKI J. MEHTA, J
AK