Delhi High Court
Hari Singh vs Prem Singh on 9 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 735/2017
RFA No. 736/2017
% Reserved on: 26th September, 2017
Pronounced on: 9th October, 2017
+ RFA No. 735/2017 and C.M. Appl. Nos. 29740-42/2017
HARI SINGH ..... Appellant
Through: Mr. Gurmeet Singh, Advocate.
versus
PREM SINGH ..... Respondent
+ RFA No. 736/2017 and C.M. Appl. Nos. 29745-47/2017
AKHILESH SINGH ..... Appellant
Through: Mr. Gurmeet Singh, Advocate.
versus
PREM SINGH ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. Two Regular First Appeals under Section 96 of the Code
of Civil Procedure, 1908 (CPC) are being disposed of by this common
judgment. The impugned judgments of the trial court are dated
10.6.2016 (RFA No.735/2017) and 12.7.2016 (RFA No. 736/2017) by
which the leave to defendant applications under Order XXXVII Rule
3(5) CPC of the appellants have been dismissed and the money
recovery suits for Rs.6,80,000/- and Rs.5,50,000/- have been decreed
in favour of the respondent/plaintiff with interest at the rate of 10%
per annum.
2. The facts of the case are that the appellants approached
the respondent/plaintiff for friendly loans. Appellants are husband and
wife. To the husband (appellant in RFA No. 735/2017)
respondent/plaintiff granted a friendly loan of Rs.1.3 lacs in August,
2008 by means of the following cheques:-
S. No. Ch. No Dated Amount Drawee Bank
1. 313915 06.08.2008 40,000.00 SCB Bank
2. 114917 07.08.2008 62,000.00 ABN AMRO Bank
3. 469412 07.08.2008 28,000.00 HSBC Bank
3. Respondent/plaintiff again was requested to give a loan
of Rs.4,00,000/- for urgent requirement of cash of the appellant‟s
family and therefore the respondent/plaintiff gave a sum of
Rs.3,50,000/- in cash as a loan to the husband on 25.12.2008 and it
was assured that this loan along with interest totaling to Rs.4,80,000/-
would be returned by the end of March, 2010.
4. Instead of discharging the liability towards loan and
interest, the appellant/husband again approached the
respondent/plaintiff in the month of January, 2010 and requested for
further loan of Rs.3,00,000/- stating that the entire amount of
Rs.6,80,000/- would be returned by the end of March, 2010.
Respondent/plaintiff therefore gave a sum of Rs.70,000/- by cheque
bearing no. 114348 to the appellant/husband and a sum of
Rs.1,30,000/- was given in cash to the appellant/husband on
25.2.2010.
5. When the respondent/plaintiff demanded a sum of
Rs.6,80,000/-, the appellant/husband stated that they were having
financial difficulties and did not return the amount, and instead the
wife (appellant in RFA No. 736/2017), who is a government servant
approached the respondent/plaintiff and stated that if the
respondent/plaintiff would arrange for a further loan of sum of Rs.4 to
5 lacs, then, the entire amount of loan would be positively returned to
the respondent/plaintiff. To confirm the loan amounts already granted,
an agreement dated 31.10.2011 was signed by the appellants in the
presence of the marginal witnesses. The husband for repayment of the
loan issued a post dated cheque bearing no. 000109 dated 20.11.2012
for a sum of Rs.6,80,000/-, and the wife for repayment of the loan
issued four post dated cheques being cheque bearing no. 436441 for a
sum of Rs.2,00,000/- dated 10.11.2012, cheque bearing no. 436442
for a sum of Rs.1,00,000/- dated 25.11.2012, cheque bearing no.
436443 for a sum of Rs.1,00,000/- dated 30.11.2012 and lastly a
cheque bearing no. 000007 for a sum of Rs.1,50,000/- dated
30.11.2012. Appellants did not repay the loan amount and when the
respondent/plaintiff deposited the aforesaid cheques in the banks of
the appellants the same were returned with the memos dated
17.12.2012 and 19.12.2012 with the remarks „stop payment‟.
Respondent/plaintiff, therefore, served legal notice dated 12.1.2003
and thereafter filed the subject suit under Order XXXVII CPC.
6. It is seen that in the leave to defend application which is
filed by the appellants the factum with respect to the appellants
receiving the loan amount by cheques is not disputed. The factum
with respect to payments of loan amount in cash gets confirmed from
the agreement dated 31.10.2011 signed by the appellants in the
presence of marginal witnesses. Appellants also did not dispute that
the cheques were issued by them for a sum of Rs.6,80,000/- so far as
the husband is concerned and four different cheques totaling to
Rs.5,50,000/- being issued by the wife. The fact that the cheques have
been dishonoured is also not a disputed fact. In view of these facts, in
my opinion, the trial court has rightly dismissed the leave to defend
application and decreed the suit for recovery of moneys.
7.(i) Learned counsel for the appellants argued that it is
inconceivable that the further loan amount of Rs.4,00,000/- was given
to the wife by the respondent/plaintiff pledging his own gold with M/s
Muthoot Finance Limited, however, in my opinion, even if the story
set up by the respondent/plaintiff of how he arranged the loan is not
correct, however, this Court cannot ignore the fact that there is no
denial by the appellants of their having signed the agreement dated
31.10.2011 acknowledging the loan amounts. This agreement is not
disputed by the appellants in their leave to defend application and I
cannot agree with the argument urged on behalf of the appellants that
para 20 of the affidavit in support of the leave to defend application
will amount to an averment that the agreement dated 31.10.2011 was a
forged and fabricated document. Para 20 of the affidavit in support of
the leave to defend application reads as under:-
"20. That it is pertinent to mention here in that the Defendant will prove
in evidence that the said documents including the cheques promissory
notes, stamp paper etc. are infact forged and fabricated documents and
therefore the present suit ought to be dismissed barred by law."
(ii) A reference to the aforesaid para 20 of the affidavit in support
of the leave to defend application shows that there is no specific denial
of the appellants having signed the agreement dated 31.10.2011.
General statements of denial as made in para 20 cannot be a basis for
grant of leave to defend as if the agreement dated 31.10.2011 is
specifically pleaded to be a forged document.
8. Learned counsel for the appellants then argued that the
appellants and the respondent/plaintiff are involved in over two dozen
cases and with respect to which FIRs have been lodged by the
appellants against the respondent/plaintiff and therefore appellants
should be given an opportunity to prove their case, however, in view
of the fact that it is not disputed that the appellants received the loans,
appellants signed the agreement dated 31.10.2011 and the appellants
had issued the cheques which were dishonored, in my opinion, no
grounds are made out for leave to defend in the facts of the present
cases.
9. There is no merit in the appeals and the same are hereby
dismissed.
OCTOBER 09, 2017/ AK VALMIKI J. MEHTA, J
