Rahul Yadav vs Hans Raj
2018 Latest Caselaw 6306 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 75/2016

%                                                   15th October, 2018

RAHUL YADAV

                                                         ..... Appellant

                          Through:       Mr. Manoj Yadav, Advocate.

                          versus

HANS RAJ

                                                       ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 26432/2018 (for restoration)

1. No one appears for the respondent.

2. This application is allowed and the present appeal is

restored to its original number and position.

C.M. stands disposed of.

RFA No. 75/2016 and C.M. Appl. Nos. 5350/2016 (for additional documents), 34391/2016 (modification of order dt. 15.02.2016)

3. This Regular First Appeal under Section 96 of the Code

of the Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the Trial Court dated 05.12.2015 by which

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

the appellant/defendant in the Order XXXVII CPC suit filed by the

respondent/plaintiff for a recovery of Rs.11,03,000/-.

4. The facts of the case are that the respondent/plaintiff

pleaded that he gave a friendly loan of Rs.11,03,000/- to the

appellant/defendant and which was secured by the appellant/defendant

vide cheque bearing no. 191702 dated 02.08.2014 for Rs.11,03,000/-

drawn on Vijaya bank, Najafgarh Branch, New Delhi-110043. When

the appellant/defendant failed to repay the loan amount, the subject

cheque was presented, but the same was returned dishonored with the

remarks 'funds insufficient', and therefore the subject suit was filed

after serving a Legal Notice dated 02.09.2014.

5. The appellant/defendant filed his leave to defend

application and raised the defence, that the subject cheque was one

which was stolen from the car of the appellant/defendant, and

therefore, the application for leave to defend was bound to be allowed

and the suit would ultimately be dismissed.

6. The trial court dismissed the leave to defend application

by noting that though the appellant/defendant claimed that he had

written to his bank and also to the police, that the subject cheque was

stolen, but as no documents were filed to substantiate this claim, thus

the leave to defend could not be granted.

7. That the appellant/defendant has filed the Complaint

made to the bank dated 23.05.2014 and the Police Complaint dated

04.10.2014 before this Court. It is, however, seen that the complaint

dated 23.05.2014, which is given to the bank is not of the

appellant/defendant but of his mother Smt. Alka Yadav and that too

pertaining to a different account rather than the account from which

the subject cheque was issued. The said Complaint dated 23.05.2014,

given by Smt. Alka Yadav, the mother of the appellant/defendant and

states that Smt. Alka Yadav had lost some 3/4 cheques. In fact, in my

opinion, this complaint of Smt. Alka Yadav dated 23.05.2014 shows

lack of bonafides in the defence of the appellant/defendant because if

the mother found that some of her cheques were stolen, then the other

family members, including her son being the appellant/defendant,

would have ordinarily at that stage in May, 2014 itself checked to see

as to if there were any other stolen cheques from any other cheque

books of any other family members, including that of the

appellant/defendant, but this is not the case of the appellant/defendant.

8. In fact, the next document being the Police Complaint

dated 04.10.2014 completely demolishes the defence of the

appellant/defendant showing the same to be frivolous, vexatious and

not raising a bonafide triable issue, inasmuch as, this Police Complaint

dated 04.10.2014, though filed by the appellant/defendant, talks of

loss of cheques with the serial numbers 28088861-69. The subject

cheque however is numbered 191702 and which would be of a

different cheque book, and also there is no mention in the Complaint

of appellant/defendant dated 04.10.2014, that the subject cheque was

stolen. Once the appellant/defendant would have made a Complaint

dated 04.10.2014 to the police with respect to some other cheques

being stolen, there was no reason why the complaint would not have

included the subject cheque no. 191702 if this cheque was stolen.

9. The principles with respect to grant of leave to defend

have been stated by the Hon'ble Supreme Court in its recent judgment

in the case titled as IDBI Trusteeship Services Ltd. v. Hubtown

Limited, (2017) 1 SCC 568, and the relevant paras of this judgment

read as under:-

"17. Accordingly, the principles stated in paragraph 8 of Mechelec's case will now stand superseded, given the amendment of Order XXXVII Rule 3, and the binding decision of four judges in Milkhiram's case, 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."

10. The Hon'ble Supreme Court has held in the aforesaid

judgment, that when the defence is frivolous or vexatious or the same

fails to raise a bonafide triable issue, leave to defend cannot be

granted. As already stated above, the defence raised by the

appellant/defendant is completely frivolous as well as vexatious and

does not raise a bonafide triable issue.

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

dismissed.

OCTOBER 15, 2018                                   VALMIKI J. MEHTA, J
AK