Delhi High Court
Renu Aggarwal & Anr vs Baldev Raj Sachdeva on 16 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th October, 2018.
+ RFA 474/2017
RENU AGGARWAL & ANR ..... Appellants
Through: Mr. G.P. Singh, Adv.
versus
BALDEV RAJ SACHDEVA ..... Respondent
Through: Mr. Vivek Luthra, Ms. Rema Luthra
and Mr. Deepak Lohchab, Advs.
AND
+ RSA 30/2018 & CM No.6311/2018 (for stay) and CM
No.17963/2018 (under Section 151 CPC for directions).
RENU AGGARWAL & ANR ..... Appellants
Through: Mr. G.P. Singh, Adv.
versus
BALDEV RAJ SACHDEVA ..... Respondent
Through: Mr. Vivek Luthra, Ms. Rema Luthra
and Mr. Deepak Lohchab, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. RFA No.474/2017 has been preferred against the judgment and
decree [dated 15th February, 2017 in CS No.57755/2016 of the Court of the
Additional District Judge-I (North)] of dismissal of application of the
appellants/defendants for leave to defend the suit filed by the
respondent/plaintiff under Order XXXVII of the Code of Civil Procedure,
1908 (CPC) for recovery of Rs.21,84,400/-, comprising of principal amount
of Rs.12,70,000/- and interest till the date of institution of the suit of
Rs.9,14,400/-, along with future interest @ 1.5% per month till the date of
realisation. Resultantly the suit of the respondent/plaintiff has been allowed
for recovery of Rs.12,70,000/- but with interest w.e.f. 1st May, 2008 i.e. the
date from which the interest was claimed in the suit but @ 10% per annum
till the date of realisation instead of @ 1.5% per month as claimed in the
suit.
2. RSA No.30/2018 has been preferred against the judgment and decree
[dated 24th January, 2018 in RCA No.50/2017 (CNR
No.DLNW010053662017) of the Court of the Additional District Judge-3
(North-West)] of dismissal of First Appeal under Section 96 of the CPC
preferred by the appellants against the judgment and decree [dated 2 nd May,
2017 in CS No.59904/16 of the Court of the Additional Senior Civil Judge
(North-West)] of dismissal of application filed by the appellants/defendants
for leave to defend the suit under Order XXXVII of the CPC for recovery
of Rs.2,36,000/- with interest at 2% per month and resultantly allowing the
suit of the respondent/plaintiff to recover Rs.2,00,000/- with interest at 9%
per annum from 1st October, 2008 i.e. from the date when the interest was
claimed in the suit till the date of realisation.
3. RFA No.474/2017 came up first before this Court on 8 th May, 2017
when the counsel for the respondent/plaintiff/decree holder appeared on
caveat and accepted notice of the appeal. Vide order dated 21 st August,
2017, execution of the money decree was stayed subject to the
appellants/defendants/judgment debtors depositing the decretal amount in
this Court by 22nd September, 2017. The appellants/defendants/judgment
debtors preferred Special Leave Petition (C) No.25411/2017 to the Supreme
Court against the order dated 21st August, 2017 and the Supreme Court vide
order dated 22nd September, 2017, while issuing notice of the said SLP,
stayed the operation of the order dated 21st August, 2017. The said SLP is
stated to be still pending and the interim order therein still in operation.
However the same does not come in the way of hearing of this appeal
which is otherwise ripe for hearing and in which the Suit Court record has
been received.
4. RSA No.30/2018 came up first before this Court on 19 th February,
2018. Vide order dated 22nd February, 2018, notice thereof was ordered to
be issued and subject to the appellants/defendants/judgment debtors
depositing the principal amount and 50% of the interest amount in this
Court within six weeks, execution was stayed. The
appellants/defendants/judgment debtors preferred SLP(C) No.7521/2018
against the order dated 22nd February, 2018 and the Supreme Court vide
order dated 28th March, 2018, while issuing notice thereof, ordered the
same to be tagged with SLP No.25411/2017 and stayed the operation of
money decree without the appellants/defendants/judgment debtors being
required to deposit the decretal amount and interest in terms of order dated
22nd February, 2018. The said SLP is also stated to be still pending
consideration.
5. The counsel for the respondent/plaintiff/decree holder states that he
has filed CM No.17963/2018 for segregating the two appeals to be heard by
the respective Roster Bench.
6. Both the appeals are before this Bench because on 17 th April, 2018,
when RFA No.474/2017 was listed, it was the contention of the counsel for
the appellants/defendants/judgment debtors that both the appeals arose from
money claims arising out of the same Settlement Agreement dated 1st
February, 2008 and it was appropriate that both be heard together. Though
the respondent/plaintiff/decree holder was present in person on that date but
was not represented by his advocate and the respondent/plaintiff/decree
holder appearing in person did not object. This Court, vide order dated 17th
April, 2018 in RFA No.474/2017, directed both the appeals to be listed
together subject to orders of Hon‟ble the Chief Justice. Hon‟ble the Chief
Justice in terms thereof has posted RFA No.474/2017 otherwise not on the
Roster of this Bench before this Bench.
7. The counsel for the respondent/plaintiff/decree holder has argued that
while a Second Appeal has to be heard on substantial question of law only,
a Regular First Appeal has to be heard on the questions of law as well as
fact and thus there is a need to segregate the two.
8. No merit is found in the aforesaid contention. CM No.17963/2018 in
RSA No.30/2018 is dismissed.
9. The counsel for the appellants/defendants/judgment debtors in both
the appeals and the counsel for the respondent/plaintiff/decree holder in
both the appeals have been heard.
10. Though the suit from which RSA No.30/2018 arises was filed earlier
in point of time, but it is deemed appropriate to set out hereinbelow the
narration of the contents of the plaint in the suit subsequently filed and from
which RFA No.474/2017 arises. It was the case of the respondent/plaintiff
decree holder therein, (i) that the two appellants/defendants/judgment
debtors were known to the respondent/plaintiff/decree holder and to the
brother of the respondent/plaintiff/decree holder since long and enjoyed
family and friendly relations; (ii) that the appellants/defendants/judgment
debtors approached the respondent/plaintiff/decree holder on many
occasions and requested for friendly loan/financial help and the
respondent/plaintiff/decree holder and his brother always helped out the
appellants/defendants/judgment debtors; (iii) that the said friendly loans
were given by the respondent/plaintiff/decree holder, partly in cash and
partly through cheques; (iv) that on 1st February, 2008, both the
appellants/defendants/judgment debtors approached the
respondent/plaintiff/decree holder for a friendly loan and after negotiations,
the appellants/defendants/judgment debtors executed a Receipt-cum-
Agreement dated 1st February, 2008 wherein the
appellants/defendants/judgment debtors acknowledged the factum of taking
loan to the tune of Rs.14,70,000/- from the respondent/plaintiff/decree
holder and his brother on many occasions; (v) as per the said Agreement
dated 1st February, 2008, the loan was interest free up to 30th April, 2008
and w.e.f. 1st May, 2008 was to incur interest @ 1.5% per month; (vi) it was
also agreed that the appellants/defendants/judgment debtors shall start
repayment of the loan from 1st June, 2008 by making a payment of
Rs.2,00,000/- each after every four months and shall pay interest on the
remaining balance as per agreed rate; (vii) that the
appellants/defendants/judgment debtors in terms of the said Agreement
dated 1st February, 2008 issued and delivered to the
respondent/plaintiff/decree holder the following four cheques:-
"S.No. Cheque No. Dated Amount Bank
1. 861912 01.06.2008 2,00,000/- UBI
2. 861911 01.10.2008 2,00,000/- UBI
3. 861909 01.02.2009 2,00,000/- UBI
4. 861910 01.6.2009 14,70,000/- UBI";
(viii) that the appellants/defendants/judgment debtors failed to repay the
principal amount of Rs.14,70,000/- till 30th April, 2008 and therefore the
respondent/plaintiff/decree holder became entitled to charge interest w.e.f.
1st May, 2008 at 1.5% per month; (ix) that the cheques for Rs.2,00,000/-
each also, were returned for the reason of "funds insufficient", when
presented for payment on due dates; (x) on assurance of the
appellants/defendants/judgment debtors, the cheques were represented from
time to time but were repeatedly returned for the reason of insufficiency of
funds in the account on which the appellants/defendants/judgment debtors
had issued the cheque; (xi) that the respondent/plaintiff/decree holder thus
instituted a suit for recovery of principal amount of cheque dated 1 st
October, 2008 for Rs.2,00,000/- along with interest and also instituted legal
proceedings under Section 138 of the Negotiable Instruments Act, 1881;
(xii) that an amount of Rs.25,28,400/- inclusive of interest was due jointly
and severally from the appellants/defendants/judgment debtors to the
respondent/plaintiff/decree holder till the date of institution of the suit; and,
(xiii) however since the respondent/plaintiff/decree holder had earlier
instituted the suit (from which RSA No.30/2018 arises) for recovery of
Rs.3,44,000/-, the claim in this suit was confined to Rs.21,84,400/- only.
11. The appellants/defendants/judgment debtors sought leave to defend
by filing an affidavit running into over 25 pages and full of repetition, but
in essence pleading, (i) that the respondent/plaintiff/decree holder is a
chronic litigant, in the habit trapping innocent people in his fiscal net; (ii)
that the respondent/plaintiff/decree holder is engaged in multiple illegal
businesses of money lending without holding a valid money lending
licence; (iii) that the respondent/plaintiff/decree holder is engaged in
running an illegal business of chit fund committees; (iv) that the
respondent/plaintiff/decree holder has filed a large number of cases against
several persons; particulars of some of the said cases were given; (v) that
since the business of chit fund being run by the respondent/plaintiff/decree
holder is illegal, the respondent/plaintiff/decree holder makes payments to
the members through cheque without maintaining any book of account and
thereby avoids payment of tax; (vi) that the appellants/defendants/judgment
debtors came under the influence of the respondent/plaintiff/decree holder
and became members of the chit fund run by the respondent/plaintiff/decree
holder; (vii) that the respondent/plaintiff/decree holder, as per his practice,
had taken blank signed cheques from the appellants/defendants/judgment
debtors as security for the draw of chit; (viii) that the
respondent/plaintiff/judgment debtor had represented to the
appellants/defendants/judgment debtors that the respondent/plaintiff/decree
holder was taking the said cheques "as a security of the chit amount
received by the deponent and would return back after completion of the chit
schedule"; (ix) "however, despite completion of the chit schedule the
plaintiff did not return the said blank signed cheques to the deponent
despite being demanded by the deponent from time to time"; (x) that the
respondent/plaintiff/decree holder has instituted the suit by misusing the
said cheques; (xi) that the cheques were given at different times and that is
why the numbers thereof are not in seriatim; (xii) that the
respondent/plaintiff/decree holder/ is holding other cheques also of the
appellants/defendants/judgment debtors; (xiii) that the
respondent/plaintiff/decree holder has not produced his Income Tax Returns
to show having advanced loan as claimed to the
appellants/defendants/judgment debtors; (xiv) that the relationship of the
appellants/defendants/judgment debtors with the respondent/plaintiff/decree
holder was only for the purpose of the chit fund; (xv) "it is specifically
denied that the deponent acknowledged any friendly/existing loan of
Rs.14,70,000/-"; (xvi) that the appellants/defendants/judgment debtors
never took any loan from the respondent/plaintiff/decree holder; (xvii) that
the appellants/defendants/judgment debtors never asked the
respondent/plaintiff/decree holder to represent the cheques at any time;
(xviii) that the appellants/defendants/judgment debtors, in reply to the legal
notice preceding the suit, had stated all the said facts; and, (xix) "the
plaintiff has filed the present proceedings relying upon forged, frivolous
and fabricated averments as mentioned in the plaint and has sought to
mislead this Hon‟ble Court".
12. The counsel for the appellants/defendants/judgment debtors and the
counsel for the respondent/plaintiff/decree holder, on enquiry state that the
contents of the plaint and the contents of application of leave to defend in
the suit from which RSA No.30/2018 arises are the same. Need to repeat
the same is thus not felt.
13. Suffice it is to state that the Suit Court as well as the First Appellate
Court in the judgments subject matter of RSA No.30/2018 and the Suit
Court in the judgment subject matter of RFA No.474/2017, all have held
that the pleas aforesaid of the appellants/defendants/judgment debtors, in
the applications filed in the two suits for leave to defend, did not entitle the
appellants/defendants/judgment debtors to leave to defend. Though
Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation
(1976) 4 SCC 687 has in IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd.
2017 (1) SCC 568 been held to be not good law qua amended CPC, from
the date of its pronouncement, but in ignorance of the same, has been
referred to by the Suit Courts in the judgments subject matter of RSA
No.30/2018 as well as RFA No.474/2017.
14. The controversy in both the appeals is thus confined to, whether on
the pleas aforesaid in the applications for leave to defend, the
appellants/defendants/judgment debtors are entitled to leave to defend and
if at all entitled to leave to defend, to a conditional leave to defend subject
to deposit or unconditional leave to defend.
15. The Settlement Agreement dated 1st February, 2008, on basis of
which both the suits were filed under Order XXXVII of the CPC, is
handwritten and in Hind language. However, the
appellants/defendants/judgment debtors, along with memorandum of RFA
No.474/2017 have filed an English translation of the same. The counsel for
the appellants/defendants/judgment debtors, on enquiry states that though
the English translation as has been filed by him along with this appeal was
initially filed in the Suit Court by the respondent/plaintiff/decree holder and
on further enquiry states that the translation therein is correct. It is deemed
appropriate to set out hereinbelow the said translation:-
"TRUE TRANSLATED COPY OF FRIENDLY LOAN
RECEIPT
CUM AGREEMENT
We Renu Aggarwal W/o Sh. Surender Aggarwal and Surender
Aggarwal S/o Late Sh. Bhagwat Prasad, both R/o A-19, Kewal
Park Ext. Azad Pur, Delhi-11033, states as follows:
1. We both have friendly loan transactions with Sh. Baldev
Raj Sachdeva and Sh. Kewal Krishan Sachdewa both S/o Late Sh.
Bhagwan Dass Sachdeva, both R/o 85, Second Floor, Chander
Lok, Delhi-110034 since 2001. We have taken friendly loan from
the above said two persons many a times. Till today, i.e.,
01.02.2008 our total friendly loan is Rupees Fourteen Lacs and
Seventy Thousand only, which has been received by both of us
partly in cash and partly through cheques.
2. The above stated friendly loan is interest fee till
30.04.2008.
3. From 01.05.2008, we shall pay an interest @ 1.5% per
month in cash and will take a receipt.
4. On 01.06.2008 we shall pay a sum of Rupees Two lacs
towards the part payment of the friendly loan of Rupees Fourteen
Lacs and Seventy thousand only and shall pay the interest on the
balance amount of Rupees Twelve Lacs and Seventy thousand
Only.
5. Similarly, we will quarterly pay a sum of Rupees Two lacs
towards the part payment of the friendly loan and shall pay the
interest @ 1.5% per month on the balance amount.
6. If our loan is sanctioned from any bank then we will re-
pay the entire balance amount in one shot.
7. For the re-payment of the above said friendly loan, we
have issued the following cheques:
S.No. Dated Cheque No. Amount Bank Name
1. 01.6.2009 861910 14,70,000/- UBI Baldev Raj Sachdeva
Azadpur
2. 01.06.2008 861912 2,00,000/- UBI Baldev Raj Sachdeva
Azadpur
3. 01.10.2008 861911 2,00,000/- UBI Baldev Raj Sachdeva
Azadpur
4. 01.02.2009 8619092 2,00,000/- UBI Baldev Raj Sachdeva
Azadpur
Amt. Amt.
Rs.14,70,000/- Rs. Fourteen Lacs and Seventy
thousand
Only
Sd/- Sd/-
Surender Aggarwal Renu Aggarwal
1/02/2008"
16. Having not found any denial in the applications for leave to defend,
of the aforesaid document, I have enquired so from the counsel for the
appellants/defendants/judgment debtors.
17. The counsel for the appellants/defendants/judgment debtors, though
unable to show any denial thereof in the leave to defend applications, has
drawn attention to the following paragraph in the rejoinder filed by the
appellants/defendants/judgment debtors to the reply of the
respondent/plaintiff/decree holder to leave to defend applications of the
appellants/defendants/judgment debtors:-
"The alleged loan agreement dated 01.02.2008 was
infact not any agreement but only signature of the
defendants were taken on a blank paper by the plaintiff.
Even otherwise the alleged loan agreement dated
01.02.2008 was already expired when the case was filed.
It is further submitted that as per contents of the legal
notice dated 17.04.2012, the plaintiff has himself
admitted that he is a professional money lender (without
holding any valid money lending license)."
18. It is evident that the appellants/defendants/judgment debtors have not
denied the signatures on the document aforesaid. On enquiry, it is informed
by the counsel for the appellants/defendants/judgment debtors and agreed
upon by the counsel for the respondent/plaintiff/decree holder, that the
handwriting on the original document is of the brother of the
respondent/plaintiff/decree holder.
19. The counsel for the appellants/defendants/judgment debtors has filed
written arguments and on enquiry states that the same cover the entire
gamut of his arguments. It is deemed appropriate to notice the contentions
of the counsel for the appellants/defendants/judgment debtors from the said
written arguments at pages 375 to 378 of the paper book in RFA
No.474/2017. It is the contention of the appellants/defendants/judgment
debtors in the written arguments, besides those in the applications for leave
to defend, (i) that the respondent/plaintiff/decree holder, in his amended
legal notice dated 17th April, 2017, detailed the date-wise loan amount
which totals Rs.9.35 lacs; (ii) in the said notice, the
respondent/plaintiff/decree holder showed liability of the
appellants/defendants/judgment debtors as Rs.25,06,350/- but called upon
the appellants/defendants/judgment debtors to pay Rs.21,65,350/- only; (iii)
there was thus contradiction in the loan amounts; (iv) that the suits were
barred by Section 3 of the Punjab Registration of Money Lenders Act,
1938; (v) that the respondent/plaintiff/decree holder had not shown the
source of his income with respect to the loan claimed to be advanced of
Rs.14.70 lacs; reliance is placed on G. Pankajakshi Amma Vs. Mathai
Mathew (2004) 12 SCC 83; (vi) that the cheques having been given as
security for chit amount received, the suits were liable to be dismissed in
terms of M.S. Narayana Menon Vs. State of Kerala (2006) 6 SCC 39;
(vii) that the suit, subject matter of RFA No.474/2017 was barred by Order
II Rule 2 of the CPC owing to the earlier suit subject matter of RSA
No.30/2018 being filed on the same cause of action; and, (viii) that the
Courts have not realised that the aforesaid raise triable questions, entitling
the appellants/defendants/judgment debtors to leave to defend.
20. No merit is found in any of the contentions of the counsel for the
appellants/defendants/judgment debtors for the reasons hereinafter
appearing:-
(a) The appellants/defendants/judgment debtors, as aforesaid, do
not deny their signatures on the writing acknowledging the
loan of Rs.14.70 lacs. The original writing in Hindi language,
immediately below it has the endorsements "Amt.
Rs.14,70,000.00" and "Amt. Rs. Fourteen lac & Seventy
Thousand only" respectively in English language, above the
admitted signatures of each of the two
appellants/defendants/judgment debtors. The placement of the
endorsements aforesaid and the signatures belie the plea of the
appellants/defendants/judgment debtors of their signatures
having been obtained on blank papers.
(b) If on such pleas, leave to defend were to be granted, the same
would not serve the purpose for which Order XXXVII
incorporated in the CPC to provide summary procedure for
disposal of some kind of suits and would result in leave to
defend being granted qua all suits filed under Order XXXVII
of the CPC, making the procedure for disposal thereof more
elaborate.
(c) Similarly, issuance of the cheques for Rs.2 lacs each, which
have been returned unpaid for the reason of insufficiency of
funds in the account of the appellants/defendants/judgment
debtors on which the cheques were issued, has also not been
denied. Section 118(a) of the Negotiable Instruments Act
raises a presumption of the cheques having been issued for
consideration and the appellants/defendants/judgment debtors
have in their leave to defend not rebutted the presumption or
raised any pleas which requires to be put to trial.
(d) The reason given for signing blank papers as well as for
delivering blank signed cheques is of the
appellants/defendants/judgment debtors having received the
chit fund amount and to secure the payment of the balance chit
instalments.
(e) However the said pleas are vague. It has not been stated, on
which date and month the appellants/defendants/judgment
debtors joined the chit fund, what was the value of the chit
fund, what was the chit amount and what was the time period
of the chit fund and instalments of what amount and for how
much duration were to be paid, what was the chit fund amount
picked up by the appellants/defendants/judgment debtors and
till when were the chit instalments to be paid. Merely because
a plea of the cheques and blank signed papers having been
given towards chit amount without anything to show that the
appellants/defendants/judgment debtors in fact participated in
the said chit fund operated by the respondent/plaintiff/decree
holder, do not amount to taking a plea in law or on which leave
to defend can be granted. Again, if on such pleas leave to
defend were to be granted, instituting a suit under Order
XXXVII of the CPC will merely increase the length of the
time for disposal of the suit rather than entitling the suit to be
tried summarily.
(f) Though the appellants/defendants/judgment debtors have
accuse the respondent/plaintiff/decree holder of running an
illegal chit fund to save tax, but the
appellants/defendants/judgment debtors have themselves not
stated how much amount in cash they paid towards chit fund
and how much amount of chit fund they received and whether
the appellants/defendants/judgment debtors have reflected all
the said amounts in their Income Tax Returns.
(g) The same also shows the mala fide nature of the plea in this
regard and of the attempt to defeat the claim of the
respondent/plaintiff/decree holder and the liability of the
appellants/defendants/judgment debtors on such pleas. The
appellants/defendants/judgment debtors, being in the same
boat, are not entitled to take such pleas.
(h) As far as reliance by the counsel for the
appellants/defendants/judgment debtors on G. Pankajakshi
Amma supra is concerned, the plaintiff in a suit for recovery of
money in that case had failed to establish the loan and the suit
was based entirely on promissory notes. The plaintiff in the
said suit however in his cross-examination admitted chit
transaction between the parties and it was in the light of the
said facts that the observations relied upon by the counsel for
the appellants/defendants/judgment debtors came to be made.
It is not so in the present case. Moreover in (i) Krishna P.
Morajkar Vs. Joe Ferrao 2013 SCC OnLine Bom 862; (ii)
Sheela Sharma Vs. Mahendra Pal 2016
SCC OnLine Del 4696; and, (iii) K. Arun Kumar Vs. R.
Moorthy 2017 SCC OnLine Mad 1353 it has been held that the
lapse if any by a claimant before the Court in filing of income
tax returns cannot be a reason for denying the claim, as that is
a concern of the Income Tax Authorities. The
appellants/defendants/judgment debtors in the present case
also are free to complain of the illegal transactions if any of the
respondent/plaintiff/decree holder, to the concerned authorities
but cannot wish away their liability to the
respondent/plaintiff/decree holder as evident from the writing
bearing admitted signatures and from the issuance of cheques.
(i) Similarly as far as the plea of the respondent/plaintiff/decree
holder carrying on business of money lending without
obtaining licence is concerned, it has been held in (i) Sitaram
Shrawan Koshti Vs. Bajya Parnya Bhoi AIR 1941 Nag 177;
(ii) Munagala Yadgiri Vs. Pittala Veeriah 1957 SCC OnLine
AP 193; and, (iii) Tara Singh Vs.Nathu Ram AIR 1979 P&H
75 that before the provisions of the Punjab Registration of
Money Lenders Act can be applied, it must be proved by the
party seeking to apply and take advantage of the provisions
that the plaintiff is a money lender. The
appellants/defendants/judgment debtors have not made any
averments in the applications for leave to defend, which if
proved would establish the respondent/plaintiff/decree holder
as a money lender. A bare plea does not suffice. Even
otherwise, a loan as defined in Section 2(8) of the Punjab
Registration of Money Lenders Act specifically excludes an
advance made on the basis of a negotiable instrument as
defined in the Negotiable Instruments Act. Thus the bar under
Section 3 would not be attracted to a loan given on the basis of
a negotiable instrument such as a cheque. Reference in this
regard may be made to Virender Singh Vs. Deepak Bhatia
2013 SCC OnLine Del 1335 (SLP Crl. No.5068/2013
preferred whereagainst has been dismissed as withdrawn vide
order dated 12th July, 2013) and Deepak Bhatia Vs. Virender
Singh 2015 SCC OnLine Del 12183.
(j) Though the appellants/defendants/judgment debtors in the
applications for leave to defend pleaded that they demanded
the cheques given as security for chit instalments after paying
all the chit instalments and the respondent/plaintiff/decree
holder did not return the cheques, but again neither any dates
thereof have been given nor is it the plea of the
appellants/defendants/judgment debtors that the
appellants/defendants/judgment debtors, on such refusal of the
respondent/plaintiff/decree holder, took any steps whatsoever
of stopping payment of the said cheques or issuing notice to
the respondent/plaintiff/decree holder demanding return of the
cheques or of making any complaint against the
respondent/plaintiff/decree holder. Such plea has been taken
only when faced with the monetary demand due thereunder
and which action belies any faith therein.
(k) Supreme Court, in IDBI Trusteeship Services Ltd. supra has
held that Mechelec Engineers & Manufacturers supra was
pronounced in the context of CPC as it stood prior to
amendment thereof in the year 1976 and pursuant to the
amendment the same is no longer good law. Applying the test
laid down in IDBI Trusteeship Services Ltd. supra, the
appellants/defendants/judgment debtors, on the averments in
the applications for leave to defend, have been rightly denied
leave to defend by three Courts.
(l) There is no contradiction in the demands or the version of the
respondent/plaintiff/decree holder, and the counsel for the
appellants/defendants/judgment debtors has not even argued in
this respect.
22. There is no merit in the appeals.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 16, 2018
„pp‟..
