Komansu Electornics Pvt Ltd vs M/S Gadsec Solutions & Ors
2018 Latest Caselaw 537 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(COMM)        874/2016     &   I.A.Nos.8336/2016,      9443/2016,
      11140/2016

      KOMANSU ELECTORNICS PVT LTD         ..... Plaintiff
                  Through  Mr.S.Khan, Advocate.

                          versus

      M/S GADSEC SOLUTIONS & ORS        ..... Defendants
                   Through  Mr.Gaganpreet Singh, Advocate.


%                             Date of Decision: 22nd January, 2018.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN
                      JUDGMENT

MANMOHAN, J: (Oral)

1. Present summary suit has been filed under Order XXXVII CPC for recovery of Rs.1,27,10,829/-

2. Briefly stated, the relevant facts of the case are that the plaintiff supplied CCTV equipments to the defendants. It is the plaintiff‟s case that the defendants did not make any payment after 07th June, 2010 and that in a meeting held on 05th September, 2012, the defendants accepted the liability of Rs.82,53,785/- uptil 20th September, 2012 and accordingly handed over a cheque bearing no.151930 dated 20 th September, 2012 amounting to Rs.82,53,785/-.

3. It is the plaintiff‟s case that the said cheque has been returned unpaid by the banker of the defendants on account of „insufficient funds‟. Thereafter, the plaintiff issued a legal notice dated 03 rd October, 2012. As no payment was received, the plaintiff filed a criminal complaint under Section 138 of the Negotiable Instruments Act, which is stated to be pending before the Metropolitan Magistrate, Rohini Courts, Delhi.

4. Along with the present summary suit, the plaintiff has filed a duly certified ledger account of the defendants as well as the invoices of the goods supplied and the certified copy of cheque dated 20th September, 2012.

5. On the other hand, it is the case of the defendants that the cheque, on the basis of which present suit has been filed, had been stolen by the former employees of the plaintiff company. Learned counsel for the defendants states that on 22nd September, 2012, the defendants had filed a complaint of theft of the cheque in question with the police. Learned counsel for the defendants has drawn this Court‟s attention to the status report filed by the police in the complaint filed by the defendants under Section 156(3) Cr.P.C. The relevant portion of the Status Report reads as under:-

"During enquiry it was revealed that the complainants had business relations with M/s Komanshu Electronics Pvt. Ltd. from 2005 to 2009 and were taking security equipments from them. Due to some differences, the business relations were severed. Both the companies are competing each other in the market. Mr. Praveen Malhotra and Sanjay Gupta Director of Komansu Electronics Pvt. Ltd. having its office at WP-79, 2nd

floor, Wazirpur Village, Ashok Vihar stated that that had dues of payment of Rs. 67,5_,962.73 toward GADSEC SOLUTIONS which along with interest came out to be Rs. 82,53,785.00 till 20/9/2012, which was settled between the parties and Mr. Amitabh Sharma and Sanjay Sharma provided them the said cheque of OBC Bank of the given amount. However, they denied that the cheque was filled up before them. No mediator could be found in the settlement. On the other hand the complainants denied having any such dues and also denied having issued the said cheque no. 151930. Further it is difficult to digest that the complainants would have agreed to pay along with interest as desired by the alleged Komansu Electronics' directors. It seems prima facie that the cheque was obtained to enforce payment of the desired amount on behalf of alleged Komansu Electronics Pvt. Ltd.

In view of above facts and circumstances order given by the Hon'ble Court will be complied with."

6. Learned counsel for the defendants also refers to the statement given by Mr.Sanjay Gupta, Director of the plaintiff company to the police, wherein he has stated that the cheque in question was handed over to him by Mr.Vinay Sharma in the defendants‟ office at Aggarwal City Plaza, Rohini, Delhi-85 "duly filled up with the agreed upon amount."

7. Learned counsel for the defendants states that plaintiff has manipulated the cheque by inserting the dates and the names with a different pen. He further states that plaintiff has failed to name and give details of business friends who intervened in squaring up the transaction. He points out that an independent handwriting expert appointed by the defendants has opined that the name of payee &

amount in figures as well as in the words had not been written by the defendant no. 2, Mr.Amitabh Sharma.

8. Learned counsel for defendants lastly states that as the defendants in Section 138 of the Negotiable Instruments Act proceedings have been allowed to cross-examine the plaintiff, the same opportunity should be granted by this Court.

9. Having heard learned counsel for the parties, this Court is of the opinion that the present suit falls under Order XXXVII CPC as it has been filed on the basis of a cheque which had been dishonoured by a bank.

10. The Supreme Court in IDBI Trusteeship Services Limited. Vs. Hubtown Limited; (2017) 1 SCC568 has laid down the following principles applicable to summary facts:-

"17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros.,AIR 1965 SC 1698: (1966) 68 Bom LR 36], as follows:

17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.

17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.

17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.

17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.

17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."

11. In the present case, the fact that the plaintiff and the defendants were in business relationship and that goods had been supplied by the plaintiff to the defendants has not been denied.

12. Though there is an allegation that the cheque in question had been stolen, yet no explanation has been put forward as to why it was

signed and from whose custody it was stolen and as to why no complaint of theft was lodged before its presentation by the plaintiff with the bank.

13. This Court is also of the view that the defendants cannot take the plea that they used to sign autographs on blank cheques.

14. Even the complaint filed by the defendants under Section 156(3) Cr.P.C. has been dismissed by the Metropolitan Magistrate, Rohini Court, Delhi vide order dated 16th February, 2013. The relevant portion of the said order is reproduced hereinbelow:-

"From the facts of the present case it is revealed that the complainants have preferred the present complaint as an off shoot to the complaint case filed by the accused persons i.e. M/s Komanshu Electronics Pvt. Ltd. u/s 138 of the NI Act. The allegations of the complainant of the cheques having been stolen by their previous employees and like defences are purely the contentions which the complainant should take in their defence in the proceedings u/s 138 NI Act. No cognizable offence is made out for which the FIR should be registered.

Case laws relied upon by Ld. Counsel for the complaint are not applicable to the facts and circumstances of the present case hence declined.

Accordingly the application u/s 156(3) CrPC for registration of the FIR, is hereby dismissed having no merits.

Put up for leading pre summoning evidence by the complainant on 02.07.2013."

15. Keeping in view the aforesaid mandate of law and conspectus of facts, this Court is of the view that the defendants are trying to raise a defence which is plausible but improbable. Consequently, this Court directs the defendants to deposit the entire decretal sum of

Rs.1,27,10,829/- with the Registry of this Court within a period of four weeks. Accordingly, I.As. 8336/2016, 9443/2016 and 11140/2016 stand disposed of.

16. Upon receiving of the amount, the Registry is directed to keep the same in a fixed deposit receipt initially for a period of six months.

17. List the matter before Court on 27th February, 2018. It is made clear that in the event the said amount is not deposited within the stipulated period, this Court would decree the present suit forthwith.

MANMOHAN, J JANUARY 22, 2018 KA