Shekhar Anand & Ors. vs Suman Khurana
2018 Latest Caselaw 1096 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 129/2018

%                                 Reserved on: 9th February, 2018
                               Pronounced on: 15th February, 2018

SHEKHAR ANAND & ORS.                                   ..... Appellants
                 Through:                Mr. Sabsachi Mishra and Ms.
                                         Bikash        Vishawakapma,
                                         Advocates.

                          versus

SUMAN KHURANA                                           ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

C.M. Appl. No. 5206/2018 (for exemption)

1. Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 129/2018 and C.M. Appl. No. 5205/2018 (for stay)

2. This Regular First Appeal is filed by the

appellants/defendants under Section 96 of the Code of Civil

Procedure, 1908 (CPC) impugning the judgment of the trial court

dated 23.11.2017 by which trial court has dismissed the leave to

defend application filed by the appellants/defendants and has decreed

the suit filed under Order XXXVII CPC for recovery of

Rs.16,00,000/- given as a friendly loan.

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

subject suit pleading that he had granted friendly loan of Rs. 16 lacs to

the appellants/defendants and with respect to which a loan agreement

dated 23.1.2015 was signed by the appellant no. 1/defendant no. 1 for

himself and on behalf of appellant nos. 2 and 3/defendant nos. 2 and 3.

To secure the loan, three cheques of Rs.6,50,000/-, 6,50,000/- and

Rs.3,00,000/- were given of the appellant no. 1/defendant no.1 bearing

Nos. 017958, 017959 and 009727, and which cheques when presented

were dishonoured and hence the subject suit was filed for recovery

under Order XXXVII CPC.

4. Appellants/defendants filed the leave to defend

application and stated various aspects of how appellant no.

1/defendant no. 1 and one Sh. Sudhir Kumar who are friends and how

they formed the company being the appellant no. 3/defendant no. 3. It

was then pleaded that after the resignation of Sh. Sudhir Kumar as a

Director of the appellant no. 3/defendant no. 3 company the husband

of the respondent/plaintiff Sh. Madan Khurana and one Sh. Rajesh Jha

started a business together for plastic bolls in the year 2014 and in

which Sh. Madan Khurana invested Rs.11 lacs. Since Sh. Rajesh Jha

is said to have left work taking away major investment, therefore, Sh.

Madan Khurana compelled appellant no. 1/defendant no. 1 to pay

Rs.11 lacs. There are other averments in the leave to defend

application with respect to appellant no. 1/defendant no. 1 paying the

amount of Rs.11 lacs to Sh. Madan Khurana. All the aforesaid

averments in the leave to defend application in the opinion of this

Court are irrelevant and have no bearing to the issue of the cause of

action in the suit and which cause of action in the suit is of the

dishonoured cheques and that the case of the appellants/defendants

was that the cheques were forcibly taken away and appellant no.

1/defendant no. 1 was forced to put thumb impression and sign on

blank papers and therefore in fact FIR dated 27.4.2016 has been

lodged against Sh. Madan Khurana, his son Sh. Jayant Khurana and

his nephew Sh. Karan Handa. This is stated in para 6(d) of the

application for leave to defend and which para reads as under:-

"6(d) The deponent submits that on 23/04/2016 at around 2:00 pm, a criminal assault with an intent cause death was committed upon the deponent by the husband (Madan Khurana), son (Jayant Khurana) and her

nephew (Karan Handa) at the work place of the deponent and forcibly took away several signed blank cheques and forced the deponent to put the thumb impressions and sign on the blank papers and forced the deponent to pay more money. It is further pertinent to mention here that the police officials rescued the deponent and took him for medico-legal examination. Copy of the statement/complaint by the Deponent against the plaintiff's Huband, Son and nephew is annexed herewith as an Annexure A-1."

5. Trial court has in my opinion rightly dismissed the leave

to defend application holding that the defence is a moonshine because

there is no credibility whatsoever in the case forthwith by the

appellants/defendants that the cheques were taken away by force and

forcibly the appellant no. 1/defendant no. 1 was made to put his

signatures and thumb impressions of certain papers. These 'certain

papers' would include the loan agreement dated 23.1.2015 and

accordingly it is argued on behalf of the appellants/defendants through

their counsel that loan agreement is dated 23.1.2015 for 36 days but

the cheques are dated 29.2.2016 and not 29.2.2015 and therefore

clearly the loan agreement should be held to have been signed under

force/coercion and the details on the cheques were only put

subsequently. This argument, however, of the appellants/defendants in

my opinion carries no weight merely because of discrepancy in the

year 2015 instead of 2016 because indubitably the cheques are of the

appellant no. 1/defendant no. 1 and signed by him and also filled in by

him and the loan agreement is also admittedly signed and bears the

thumb impressions of the appellant no. 1/defendant no. 1 as many as

three times. Therefore, trial court has rightly held the story put forth

by the appellants/defendants as moonshine of the cheques having been

taken by coercion/force by the respondent/plaintiff.

6. There is no merit in the appeal and the same is hereby

dismissed.

FEBRUARY 15, 2018                           VALMIKI J. MEHTA, J