Delhi High Court
Rajinder Kumar Tyagi vs Prem Nijhara & Anr. on 14 September, 2018
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 14th September, 2018
+ CS (OS) 143/2014
RAJINDER KUMAR TYAGI ..... Plaintiff
Through: Mr. Satyavan Kundalwal, Advocate.
(M:9811580002)
versus
PREM NIJHARA & ANR. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
I.A. 11537/2016 (732 days delay in filing OA) and O.A. 178/2016
1. A perusal of the record shows that the Defendant No.2 has already
filed the written statement, though the right was closed on 20th August,
2014. Since the written statement has already been filed and replication is
also filed, the order dated 20th August, 2014 is recalled and written statement
is taken on record. The delay in filing of the OA is condoned. O.A. is
disposed of.
CS (OS) 143/2014
2. On the last date, Defendant No.1 appeared in person and sought an
adjournment, which was granted subject to payment of costs of Rs.5,000/-.
None has appeared for the Defendants today. Costs have also not been paid.
The Defendants are proceeded ex-parte.
3. The present is a suit for recovery of Rs.2,40,67,000/- along with
interest. The case of the Plaintiff is that the Plaintiff had, through common
friends, given a loan to the Defendant No.2, both by way of cheques and
cash. As against the amounts advanced as loan by the Plaintiff, the
Defendant No.1 issued five cheques, details of which are mentioned in
paragraph 4 of the plaint:
CHEQUE NO. DATED AMOUNT
305164 17.10.2009 Rs.17,00,000/-
305165 24.10.2009 Rs.17,00,000/-
305166 31.10.2009 Rs.17,00,000/-
305167 07.11.2009 Rs.10,00,000/-
305168 14.11.2009 Rs.07,50,000/-
4. Since the Defendants did not honour the payment of these cheques,
further cheques were issued by the Defendant No.2 for a sum of Rs.87
Lakhs, as detailed in paragraph 5 of the plaint.
CHEQUE NO. DATED AMOUNT
370371 25.05.2010 Rs.20,00,000/-
370372 25.05.2010 Rs.20,00,000/-
370373 25.05.2010 Rs.20,00,000/-
370374 30.05.2010 Rs.05,00,000/-
359235 30.05.2010 Rs.22,00,000/-
5. The said cheques were replaced by Defendant No.2 again with six
other cheques as mentioned in paragraph 6 of the plaint, which are detailed
as under:
CHEQUE NO. DATED AMOUNT
486293 15.12.2010 Rs.20,00,000/-
486294 20.12.2010 Rs.20,00,000/-
486295 20.12.2010 Rs.28,00,000/-
486296 26.12.2010 Rs.22,00,000/-
486297 30.12.2010 Rs.15,00,000/-
486298 30.12.2010 Rs.12,40,000/-
6. The Plaintiff, thereafter, filed a criminal complaint under Section 138
of the Negotiable Instruments Act, in respect of four cheques as mentioned
in paragraph 11 of the plaint, details of which are extracted below:
CHEQUE NO. DATED AMOUNT
486294 20.12.2010 Rs.20,00,000/-
486295 20.12.2010 Rs.28,00,000/-
486296 26.12.2010 Rs.22,00,000/-
486298 30.12.2010 Rs.12,40,000/-
7. In respect of the cheque number 486297, it is averred by the Plaintiff,
that there was some overwriting in the amount on the cheque, and the same
could not be encashed when presented. Insofar as cheque number 486293
for a sum of Rs.20,00,000/- is concerned, the same was not presented by the
Plaintiff on the assurance of the Defendants that the payment of the cheque
would be made to him in cash. Thus, the complaint under Section 138 of the
Negotiable Instruments Act, 1881 was made only in respect of the 4 cheques
mentioned in paragraph 11 of the plaint. It is also averred in the Plaint that
the Defendants forged a dissolution deed as also acknowledgements of the
Plaintiff having received the amounts. Learned counsel for the Plaintiff
submits that the said criminal complaint is still pending.
8. In the written statement, the stand of the Defendant No.2 is that the
amount, which was given by the Plaintiff, was invested in the company M/s.
Supreme Ventures FZC and the same was not a loan. Allegations of forgery
of the dissolution deed and the acknowledgments are denied. In respect of
the two cheques of Rs.15,00,000/- and Rs.20,00,000/-, the allegations made
in paragraph 7 of the plaint have been simply denied and no explanation has
been offered by the Defendants. Issuance of the cheques, as mentioned in
paragraphs 4 & 5 of the plaint, is however not denied. The relevant portion
of the Written Statement reads as under:
"7. That the contents of para no.7 of the suit are
wrong, false, misconceived and hence denied. It is
specifically denied that in the second week of
December, 2010 when the plaintiff intimated to the
defendant no.1 that he is going to present the above
cheques for encashment on their due dates. It is further
specifically denied that the defendant no.1 requested to
wait for another two months. It is further specifically
denied that one cheque bearing No.486297 for
Rs.15,00,000/- (Rupees Fifteen Lacs) was having a
cutting in the amount in figures which was done by
defendant no.2 intentionally so that the same could not
be encashed when presented. It is further specifically
denied that the cheque no.486293 for a sum of
Rs.20,00,000/- could not be presented by the plaintiff
second time due to false assurance of the defendant
that the payment of cheque shall be made to him in
cash. It is, however, submitted here that besides the
present case the plaintiff has filed many other
complaints against the defendants which includes four
cases of N.I. Act much, got registered a F.I.R. against
the defendants at Police Station C.R. Park, a complaint
at P.A. Burari and a criminal complaint in the court of
Ms. Aparna Swami M.M. Tis Hazari. It is further
submitted that actually whatever amount given by the
plaintiff was an investment in the company M/s
Supreme Ventures FZC and not any kind of loan to the
defendants as alleged by plaintiff. The defendants
could not be held liable for any kind of losses accrued
just due to the reason that the company could not work
properly due to insufficiency of funds which was the
ultimate result of the fact that the plaintiff had not
invested the amount as agreed by him."
The case of the Defendants is that the Plaintiff's investment was only to the
tune of Rs.8 Lakhs, Rs.13 Lakhs and Rs.5 Lakhs and not as claimed in the
plaint.
9. A perusal of paragraph 11 of the Plaint and the reply on merits in the
written statement shows that the Defendants merely plead that the contents
of paragraph 11 need no reply. The same are extracted below:
"11. That the contents of para no.11 of the suit need no
reply"
10. However, there is another reply on merits to paragraph 11, where the
Defendant No.2 denies that he is to pay Rs.2,40,67,000/- to the Plaintiff, and
has in fact already made payment of Rs.18 Lacs, after which there nothing
outstanding which was left to be paid to the Plaintiffs. Paragraph 11of the
reply on merits as under:
"11. That the contents of para no. 11 of the suit are
wrong, false, misconceived and hence denied. It is
specifically denied that the defendants are liable to pay
Rs.1,17,40,000/- towards cheque amount along with
Rs.1,23,27,000/- towards interest @ 3% per month
from the date of issuance of the cheques till the filing of
the present suit, totalling Rs.2,40,67,000/- (Rupees
Two Crores Forty Lacs Sixty Seven Thousand only). It
is, however, submitted here that the defendants have
already returned the amount of Rs.18 Lacs which was
actually invested by the plaintiff in the business to the
plaintiff during the course of hearing of their
anticipatory bail before the Court of Sh. V.K. Khanna,
A.S.J., Saket, New Delhi on 26.02.2014 and now,
nothing remains due towards the defendants nor the
defendants are under any legal liabilities to return
anything to the plaintiff."
11. The Plaintiffs, in the replication, responding to the aforementioned
paragraph 11, stated that the amount of Rs.18 lacs was received by them as
the same was ordered by the ASJ, Saket Court, before granting anticipatory
bail to the Defendants and this amount was not towards any full and final
repayment of any dues by the Defendants. The relevant extract of the same
is as under:
"Para 11 of the written statement is wrong and denied
as stated. It is submitted that the defendants are liable
to pay Rs.1,17,40,000/- towards cheque amount
alongwith Rs.1,23,27,000/- towards interest @ 3% per
month from the date of the issuance of the cheques till
the filing of the present suit totalling Rs.2,40,67,000/-
(Rupees Two Crores Forty Lacs Sixty Seven Thousand
only). It is submitted that the plaintiff has received only
Rs.18 Lacs from the defendants without prejudice to
his right as the same was ordered by the Hon'ble
Court of Shri V.K. Khanna, ASJ, Saket, New Delhi on
26-02-2014 before granting anticipatory bail to the
defendants. The said amount was not towards any full
and final repayment and the defendants are liable to
pay the balance of the suit amount. Corresponding
para of the plaint is reaffirmed."
12. Apart from this, since the cheques issued by the Defendants are
themselves not denied, there appears to be no defence raised by the
Defendants. Since the disbursement of the amount and the issuance of
cheques is admitted, no evidence is required to be led in the matter. As held
in Everstone Capital Advisors Pvt. Ltd. & Anr. v Akansha Sharma & Ors.,
[CS(COMM.) 1028/2016, dated 17th July, 2018], in cases where the
defendants are ex-parte, the formality of leading of ex-parte evidence can be
dispensed with, if the matter can be disposed of on the basis of the record.
13. The pleadings also clearly show that the Defendants do not dispute
the issuance of cheques and pendency of Section 138 complaints in respect
thereof. The four cheques are admitted. The payment of Rs.18 lakhs is also
not disputed. The suit is accordingly decreed against Defendant no.2, for the
amounts due as per the amounts in cheque Nos.486294, 486295, 486296 &
486298 i.e., for a sum of Rs.82,40,000/- minus Rs.18,00,000/- which has
been received by the Plaintiff i.e., for a sum of Rs.64,40,000/- along with
simple interest @ 8% per annum.
14. Decree sheet be drawn in the above terms.
PRATHIBA M. SINGH
JUDGE
SEPTEMBER 14, 2018/dk
