Sukhbir Singh Panchal & Anr. vs Amandeep Singh Chhabra & Anr.
2017 Latest Caselaw 4963 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            RFA No. 737/2017 and CM Appls. 29749-51/2017

%                                              12th September, 2017

SUKHBIR SINGH PANCHAL & ANR.             ..... Appellants
                  Through: Mr.    Sudhir    K.    Suneja,
                           Advocate
                          versus

AMANDEEP SINGH CHHABRA & ANR.                           ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) impugning the judgment of the

Trial Court dated 18.4.2017 by which the trial court has dismissed the

leave to defend application filed by the appellants/defendants under

Order XXXVII Rule 3 CPC and has decreed the suit for the sum of

Rs.13 lacs along with interest at the rate of 11% per annum. The

principal amount claimed in the suit of Rs.13 lacs is the total amount

due on six dishonored cheques. Appellant no.1/defendant no.2 is the

sole proprietor of the appellant no.2/defendant no.1.

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

subject suit pleading that there was business relations between the

respondent no.1/plaintiff (hereinafter respondent/plaintiff) and

appellants/defendants whereby the respondent/plaintiff had generated

the lead for the work of digital marketing for Consumer Technical

Support for USA & Canada, which lead was transferred/sold to

different Call Centers for valuable price. The appellants/defendants

were running a Call Centre to which respondent/plaintiff is said to

have transferred various leads from December 2014 to July 2015.

With respect to different amounts which were due to the

respondent/plaintiff from the appellants/defendants, and which totals

to a sum of Rs.15,05,207.90/-, the appellants/defendants is said to

have furnished cheques for an amount of Rs.13 lacs to the

respondent/plaintiff as detailed below :-

 SL.   CHEQUE DRAWN               DATED          AMOUNT       REMARKS
 NO    NUMBER FROM                               (IN RS.)
 1.    000026 HDFC BANK           01.06.2015     1,00,000/-   FUNDS
                                                              INSUFFICIENT
 2.    000048      HDFC BANK      15.07.2015     3,00,000/-   FUNDS
                                                              INSUFFICIENT
 3.    000049      HDFC BANK      15.07.2015     2,00,000/-   FUNDS
                                                              INSUFFICIENT
 4.    000054      HDFC BANK      25.07.2015     3,00,000/-   FUNDS
                                                              INSUFFICIENT
 5.    000055      HDFC BANK      25.07.2015     3,00,000/-   STOP PAYMENT
 6.    000056      HDFC BANK      25.07.2015     1,00,000/-   STOP PAYMENT

3. The six cheques totaling to the principal amount of Rs.13

lacs were dishonored on presentation by the bank of the

appellants/defendants at New Delhi. Respondent/plaintiff, thereafter,

served upon the appellants/defendants the legal notice dated

27.08.2015 and then filed the subject suit.

4. Appellants/defendants sought leave to defend by pleading

that they had paid a sum of Rs.9 lacs to the respondent/plaintiff in the

month of July 2015, and that on payment of this amount of Rs.9 lacs

nothing further remained due by the appellants/defendants to the

respondent/plaintiff. It is also pleaded by the appellants/defendants

that the subject cheques were handed over to the respondent/plaintiff

not towards any liability for legally recoverable debt but were given

only as security.

5. Trial Court has dismissed the leave to defend application

and decreed the suit by observing in para 8 of the impugned order that

though the appellants/defendants have mentioned in their leave to

defend application that an amount of Rs.9 lacs was paid by them to the

respondent/plaintiff in July 2015, but the mode of payment is not

given and nor any statement of account is filed by the

appellants/defendants and nor has any receipt been filed of payment

allegedly made by the appellants/defendants to the

respondent/plaintiff. The fact that the six cheques are dishonored and

were issued by the appellants/defendants is not disputed.

6. In my opinion, no fault can be found of the trial court in

passing the impugned judgment dismissing the leave to defend

application because admittedly the six dishonored cheques are of the

appellants/defendants as appellant no. 1 is the sole proprietor of

appellant no. 2 and whose cheques were issued totaling to a sum of

Rs.13 lacs. Trial Court has rightly held that appellants/defendants have

failed to file their statements of accounts and which would have

shown if any amount was due by the appellants/defendants to the

respondent/plaintiff. Also, if appellants/defendants claimed to have

paid a sum of Rs.9 lacs and on payment of which amount entire

liability towards the respondent/plaintiff was said to be satisfied then

some proof had to be filed of such payment having been made by the

appellants/defendants to the respondent/plaintiff but no proof

whatsoever has been filed. Trial Court has therefore disbelieved the

self serving statement of appellants/defendants having paid the sum of

Rs.9 lacs to the respondent/plaintiff.

7.(i) Learned counsel for the appellants/defendants argued by

placing reliance upon the statement of account filed by the respondent

no.1/plaintiff and it is argued that the suit is filed on the basis of

statement of account and not on the dishonored cheques. It is also

argued that the dishonored cheques are not shown in the statement of

account filed by the respondent/plaintiff. It is also argued that the

subject cheques were given as security and not towards any liability or

a legally recoverable debt.

(ii) In my opinion, the arguments urged by the

appellants/defendants are without any substance because though the

respondent/plaintiff filed a statement of account of the amount due,

however the amount which is claimed in the suit is only the amount of

dishonored cheques and not the total larger amount due in terms of the

statement of account. Also, if the cheques were only given as security,

the appellants/defendants would have filed their counterfoil of the

cheque book to show the cheques being issued continuously only on

one date as security, however, the appellants/defendants have not filed

the counterfoil of the cheque book and therefore, it cannot be argued

by the appellants/defendants that the cheques were given as security.

In any case, once the appellants/defendants have taken a defence that

they have made the payment of Rs.9 lacs in full and final settlement of

the claim of the respondent/plaintiff and the appellants/defendants

however failed to substantiate such a plea, then in such a case, trial

court has committed no error in dismissing the leave to defend

application and decreeing the suit being the amount of the dishonored

cheques. I may note that in terms of Section 118 of the Negotiable

Instruments Act, 1881 the cheques have to be presumed to be given

for consideration.

8. In view of the above discussion, I do not find any merit in

the appeal. Dismissed.

SEPTEMBER 12, 2017                          VALMIKI J. MEHTA, J
P