Ashwani Kumar vs Kalimuddin
2018 Latest Caselaw 5261 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 625/2018

%                                                 4th September, 2018

ASHWANI KUMAR                                            ..... Appellant

                          Through:       Mr. Abhishek Kumar, Advocate
                                         (Mobile No. 9891138990).

                          Versus

KALIMUDDIN                                             ..... 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. 35700/2018 (for restoration)

1. This application is allowed and the present appeal is restored to

its original number.

C.M. stands disposed of.

RFA No.625/2018 and C.M. Appl. Nos. 31118-20/2018

2. This Regular First Appeal under Section 96 of the Code of Civil

Procedure, 1908 is filed by the defendant in the suit impugning the

Judgment of the Trial Court dated 16.3.2018 by which the trial court

has dismissed the leave to defend application filed by the

appellant/defendant and has decreed the suit for recovery of money

filed by the respondent/plaintiff. The cause of action arising in favour

of the respondent/plaintiff was on account of giving of a loan of

Rs.15,00,000/- by the respondent/plaintiff to the appellant/defendant,

and which loan was secured by the three subject cheques which were

dishonored.

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

the plaint that the appellant/defendant was in need of moneys

inasmuch as the appellant/defendant was engaged in construction of

flats at plot no. 408-409, Dhaka Johar, Near Parmanand Colony,

Mukherjee Nagar, Delhi. In April, 2015, therefore on the

appellant/defendant showing the respondent/plaintiff Collaboration

Agreement entered into between him and Sh. Rakesh Kumar for

construction of the flats on the aforesaid plot, the respondent/plaintiff

arranged a sum of Rs.15,00,000/- which was paid to the

appellant/defendant as loan on 22.4.2015. Appellant/defendant in

token of having received the loan signed the receipt of the same date

i.e. 22.4.2015, and appellant/defendant also gave three post dated

cheques dated 9.5.2016 for Rs.5,00,000/- each to the

respondent/plaintiff drawn on State Bank of India Branch, Azad

Market, Delhi, bearing nos. 845466-68. These cheques however on

presentation were dishonored with the remarks 'funds insufficient',

and therefore the subject suit for recovery of Rs.15,00,000/- was filed.

4. Appellant/defendant filed his leave to defend application. In the

leave to defend application the appellant/defendant did not deny that

the subject three cheques were bearing his signatures. In the leave to

defend application there is no denial that the receipt dated 22.4.2015

was executed by the appellant/defendant. Appellant/defendant

pleaded that since the son of the respondent/plaintiff was an employee

in a bank, and who assured that he will take a loan for the

appellant/defendant from the bank, therefore the subject three cheques

were given not to the respondent/plaintiff but to his son for obtaining

the loan from the bank. In the leave to defend application there are

statements of facts of Sh. Ashish, the brother of the

appellant/defendant, having entered into a Collaboration Agreement

with one Sh. Harbhajan Singh with respect to property bearing no. 16-

1B, Indra Vikas Colony, New Delhi-110009, on a plot of 50 sq. yards,

of which second floor of the property was to vest with the brother of

the appellant/defendant Sh. Ashish Kumar, and that this flat was to be

sold to the relative of the respondent/plaintiff one Sh. Tahsim, and that

a sum of Rs.7,50,000/- was prepared from the bank account of the son

of the respondent/plaintiff and paid to Sh. Harbhajan Singh. It was

also pleaded in the leave to defend application that the signatures of

the appellant/defendant on the cheques are forged as also other details

filled in dishonestly, fraudulently and maliciously.

Appellant/defendant therefore prayed for grant of unconditional leave

to defend by denying that he had ever received any amount of

Rs.15,00,000/- from the respondent/plaintiff as loan.

5. Trial court has dismissed the leave to defend application by

observing that the appellant/defendant does not deny that he gave the

subject cheques to the respondent/plaintiff and which bear signatures

of appellant/defendant. Trial court has further observed that there is a

contradiction in the case of the appellant/defendant because on the one

hand appellant/defendant said that he is not in the need of money and

on the other hand it is pleaded that the son of the respondent/plaintiff

who was working in the bank would get him a loan. It is also held by

the trial court that there is a Receipt dated 22.4.2015 bearing the

signatures of the appellant/defendant with respect to taking of the

loan. Accordingly, the trial court has dismissed the leave to defend

application by making the following observations:-

"3. I have considered the submission of Ld. Counsel for the defendant and Ld. Counsel for plaintiff as submitted above. The defendant has not disputed the handing over of three cheques in question. His only defence is that four cheques were given by him to the plaintiff for obtaining loan from his son who is working in bank. Defendant has not mentioned in his application in which bank the son of plaintiff has been serving. No document has been filed on record on behalf of defendant to show that the son of the plaintiff has been working in a bank. Defendant has also not mentioned any detail regarding four cheques. Defendant has not stated about the amount of loan which were to be taken by him from bank. I agree with the submissions of Ld. Counsel for the plaintiff that four cheques are not required for obtaining the loan from a bank. Defendant has stated in his affidavit filed with the application under disposed that he has never in the need of money and has not approached the plaintiff for loan while he has taken plea that four cheques were given by him to the plaintiff for obtaining loan from the bank. If he was not in the need of money, why he has allegedly given four cheques for obtaining loan from a bank to the plaintiff. In the receipt dated 22.04.2015 it has been mentioned that three cheques have been given by the defendant to the plaintiff. If the four cheques would have been given by the defendant to the plaintiff, it must have been mentioned in the said receipt which has been duly signed by the defendant."

6. I do not find any illegality whatsoever in the impugned

judgment because the case/defence of the appellant/defendant is quite

clearly completely false, besides being disjointed. How are any

averments with respect to brother of the appellant/defendant being

builder and having a second floor flat in a property at Indra Vikas

Colony which was sought to be allegedly transferred to a relative of

the respondent/plaintiff one Sh. Tahsim, would in any manner be

relevant or related or connected to the loan being given by the

respondent/plaintiff to the appellant/defendant, is not explained. Also

if the respondent's/plaintiff's relative was to purchase a second floor

flat then cheques of payment would have been given by the

respondent/plaintiff or his relative Sh. Tahsim to the

appellant/defendant or his brother Sh. Ashish, but it cannot be that for

such a transaction there will be cheques which will be handed over by

the appellant/defendant to the respondents/plaintiff. Also, how this

aspect of the brother of the appellant/defendant being owner of the

Second Floor, Indira Vikas Colony is tied up to the admission of the

appellant/defendant that he asked for loan from the son of the

respondent/plaintiff who was working in a bank, is not at all

explained. Trial court has rightly observed that the

appellant/defendant has failed to state that, as to which bank was the

son of the respondent/plaintiff an employee with and also it is not

stated as to that what was the amount of loan which the son of the

respondent/plaintiff had to allegedly obtain from the bank to be given

to the appellant/defendant. Also if loan had to be given to the

appellant/defendant from the bank then where does arise the need of

appellant/defendant handing over his signed cheques to the

respondent/plaintiff or to the son of the respondent/plaintiff for that

matter, because it is not the case of the appellant/defendant that the

loan was already granted and the cheques were given by the

appellant/defendant to the respondent/plaintiff or his son for

repayment of the loan amount to the bank. In fact the complete

defence stated by the appellant/defendant in the leave to defend

application is totally confusing to say the least. Obviously, it's

objective is of creating confusion and thus create a false defence for

grant of leave to defend, and the trial court in my opinion has rightly

disbelieved the case set up by the appellant/defendant and has

therefore dismissed the leave to defend application.

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

dismissed.

SEPTEMBER 04, 2018                          VALMIKI J. MEHTA, J
AK