Delhi High Court
K C Sharma (Since Deceased) Thr Lrs vs Himanshu Sikka & Anr on 28 November, 2019
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Delivered on: 28th November, 2019
+ RFA 539/2018 & CM APPL No.27513/2018
K C SHARMA (SINCE DECEASED) THR LRS ..... Appellants
Through: Mr.S.K.Sahijpal and Ms.Yashika
Yadav, Advs.
versus
HIMANSHU SIKKA & ANR ..... Respondents
Through: Mir Akhtar Hussain, Adv.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. This appeal challenges the judgment and decree dated 28.02.2018
passed by ADJ-03, Rohini Courts, Delhi in CS No.15/2015 whereby suit
under Order 37 CPC filed by the respondent for recovery of 8,72,123/-
was decreed in favour of respondent and against the appellant herein.
2. The suit was filed on the premise the appellant and his son-in-law
were partners in a partnership firm dealing in wholesale and retail
business in paper and paper products in the name and style of M/s Balaji
Paper mart and have placed orders to the respondent for the supply of
stationary in which the respondent was dealing. It was alleged by the
appellant, the respondent is doing business in the name of M/s Laxmi
Papers.
3. It was further averred sometimes the appellant made payments in
cash and but later in consideration of the supply of paper products the
appellant had issued three cheques totaling to 8,72,123/- in discharge
of partial liability. Admittedly, all these three cheques were dishonoured
for reasons 'insufficient funds', hence a notice was issued by the
respondent upon the appellant and then this suit under Order 37 CPC was
filed. A criminal complaint under Section 138 of Negotiable Instruments
Act was also filed against the appellant.
4. An application under Order 37 Rule (3)5 CPC seeking leave to
defend was filed by the appellant wherein the appellant alleged he is an
old aged senior citizen, visually impaired, can sign only on putting hand
on paper and had retired from a Government job, drawing handsome
pension and that his son-in-law Mr.Kaliya may have stolen the cheques
and sold it to the respondent who is indulged in and is a master of these
type of cases to grab money from people as his routine business. It was
averred the appellant never had any business and had never issued any
cheques.
5. It is alleged the respondent never filed any bill, any order, any slip
of dealing or any type of agreement/ contract on record and the cheques
were without consideration. It is further averred the appellant has never
been in stationary/paper business as is a retired employee and the three
cheques are in different handwriting(s) and moreover the signatures on
these cheques are also not of the appellant. The appellant's counsel
requested the court to compare it with admitted signatures of the
appellant on the applications and affidavits filed, being different than
those on the subject cheques, which otherwise, also are alleged to be
without consideration.
6. Though a plausible defence is raised by the appellant but it appears
to be improbable. At this stage the learned counsel for the respondent
fairly concedes to grant conditional leave to defend to the appellant on
deposit of subject cheque(s) amount.
7. In the circumstances, conditional leave to defend is granted to the
appellant, now represented through his legal heirs, on their deposit of
cheque(s) amount of 8,72,123/- within four weeks from today. If such
amount is not deposited, the decree shall follow per rule 3(6)(b) of Order
37 CPC. Needless to state the amount so deposited will be subject to final
disposal of the suit on merits. The amount so deposited with the learned
trial court shall be kept in an interest bearing FDR, initially for a period
of one year with an automatic renewal clause.
8. The trial court not to be influenced by any observation. Both the
parties to appear before the learned trial court on 16 th December, 2019,
at 10.00AM for further proceedings in accordance with law.
9. In lieu thereof the impugned order is set aside. The appeal stands
disposed of in terms above. Pending application(s), if any, are all also
disposed of. No order as to costs.
10. Copy of this order be sent to the learned trial court for information
and compliance.
YOGESH KHANNA, J.
NOVEMBER 28, 2019
VLD
