Sachin vs Rajneesh Kumar
2019 Latest Caselaw 862 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 118/2019

%                                                11th February, 2019

SACHIN                                                    ..... Appellant
                          Through:       Mr. Rama Shankar, Advocate
                                         (Mobile No. 9811214465).

                          versus

RAJNEESH KUMAR                                          ..... 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. 6251/2019 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. No. 6249/2019 (for delay)

2. For the reasons stated in the application the delay of 212

days in filing the appeal stands condoned, subject to just exceptions.

C.M. stands disposed of.

RFA No. 118/2019 and C.M. Appl. No. 6250/2019 (for stay)

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

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

impugning the Judgment of the trial court dated 22.03.2018 by which

the trial court has decreed the suit filed by the respondent/plaintiff

under Order XXXVII CPC on account of the appellant/defendant

failing to comply with the order granting conditional leave to defend

whereby the appellant/defendant had to deposit a sum of Rs.

1,00,000/- by 11.07.2017. The Order dated 27.04.2017 granting

conditional leave to defend is also impugned in this appeal. I may

note that once a challenge is made to a final judgment and decree then

any interim order which has had the effect of bringing about the final

judgment and decree, will be appealable as per Section 105 CPC, and

hence the present appeal impugning the Judgment dated 27.04.2017 as

also the consequential Order dated 22.03.2018.

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

subject suit pleading that he gave a loan of Rs. 7,00,000/- to the

appellant/defendant in the month of May, 2016. The

appellant/defendant had assured that he will return the same in time,

but he failed to do so. The appellant/defendant had issued his cheque

no. 013890 dated 07.07.2016 for a sum of Rs. 7,00,000/- drawn on

ICICI Bank, Bhajan Pura, Delhi-110053 for repayment of the loan

amount, but this cheque was dishonoured on presentation on account

of 'insufficient funds', and hence after serving the Legal Notice dated

19.07.2016 to the appellant/defendant, the respondent/plaintiff filed

the subject suit.

5. The appellant/defendant filed his leave to defend

application and contended that appellant/defendant had not taken a

loan of Rs. 7,00,000/-, but in fact the appellant/defendant had taken a

loan of Rs. 1,00,000/- only, and this loan of Rs. 1,00,000/- already

stands repaid to the respondent/plaintiff. It was pleaded that on asking

the respondent/plaintiff to return back the cheque, the respondent/

plaintiff had failed to do so. Therefore, an unconditional leave to

defend was prayed for.

6. The trial court by the first impugned Judgment dated

27.04.2017 has held that there was a triable issue and consequently

leave to defend should be granted on deposit of Rs. 1,00,000/-. A

conditional leave to defend was granted on 27.04.2017. Time was

granted up to 11.07.2017 to make the deposit as also file the written

statement. The appellant/defendant has failed to comply with the

Order dated 27.04.2017 inasmuch as this amount of Rs. 1,00,000/-

which was to be deposited by 11.07.2017, was not deposited till

22.03.2018, and the appellant/defendant had also failed to file the

written statement, and ultimately on 23.03.2018, the trial court on

account of failure to comply with the condition of grant of leave to

defend, decreed the suit.

7. The Ld. counsel for the appellant/defendant prays before this

Court that one more opportunity be granted to the appellant/defendant

to deposit a sum of Rs. 1,00,000/-, but in my opinion, this submission

is liable to be forthwith rejected because after all, around almost two

years have passed since the conditional leave to defend was granted on

27.04.2017. Surely the actions of the appellant/defendant are not

bonafide because even Rs. 1,00,000/-, out of the total suit amount of

Rs. 7,00,000/-, has not be been deposited till date and even today only

time is sought. The request for grant of additional time is also to be

rejected because it is noted that the appellant/defendant has till date

not even filed the written statement. Obviously, the appellant/

defendant is trying all tactics to avoid payment of dues to the

respondent/plaintiff.

8. In fact, in my opinion, the appellant/defendant was lucky to be

granted the leave to defend on deposit of Rs. 1,00,000/- only, out of

the total suit amount of Rs. 7,00,000/-, inasmuch as, in my opinion,

the grant of conditional leave to defend to the appellant/defendant was

by the trial court taking an unnecessary liberal approach, and the same

is violative of the ratio of the recent judgment of the Hon'ble Supreme

Court in the case of IDBI Trusteeship Services Ltd. v. Hubtown Ltd.,

(2017) 1 SCC 568. In this judgment, the Hon'ble Supreme Court has

reiterated that when a defence is frivolous or vexatious or does not

raise a triable issue, the leave to defend should not be granted. I may

note that the defence as put up by the appellant/defendant was ex-facie

false because it is not believable, that if the loan was of Rs. 1,00,000/-

instead of Rs. 7,00,000/-, and this loan of Rs. 1,00,000/- was allegedly

repaid by the appellant/defendant to the respondent/plaintiff then why

has the appellant/defendant not taken back the cheque from the

respondent/plaintiff. In fact, this Court would like to note that if the

respondent/plaintiff would have illegally refused to return the

dishonoured cheque, then the appellant/defendant would have at least

issued a letter, if not a legal notice, asking the respondent/plaintiff to

return the dishonoured cheque, but there is not even a single letter or

communication in writing issued by the appellant/defendant to the

respondent/plaintiff that the appellant/defendant has repaid the loan

amount of Rs. 1,00,000/-, and that the respondent/plaintiff is illegally

retaining the dishonoured cheque.

9. In view of the aforesaid discussion, there is no merit in

the appeal. As already stated above, in the facts of the present case, the

appellant/defendant was not even entitled to the leave to defend, and

the same had been granted in a liberal manner by the trial court on the

appellant/defendant being asked to deposit Rs. 1,00,000/- only, out of

the total suit amount of Rs. 7,00,000/-, but the appellant/defendant has

failed to deposit this amount for almost two years and has not even

filed the written statement. All pending applications are disposed of.

Dismissed.

FEBRUARY 11, 2019                            VALMIKI J. MEHTA, J
AK