AB and U Communication Pvt. Ltd. vs Mr. Jitu Shah, prop. of Dhaval Enterprises

R.Y. Ganoo, J.—The plaintiffs have filed this suit for recovery of the amounts in regards to the dishonoured cheques amounting to Rs. 25,00,000/- and odd amount. According to the plaintiffs, the plaintiffs were to advertise the goods of the defendant and the defendant was to pay to the plaintiffs the advertisement charges.

The cheques have been dishonoured on account of "Stop Payment" Orders issued by the defendant. In the correspondence prior to the institution of the suit defendant has come out with a vague case that plaintiffs did not comply with their contractual obligation and therefore the defendant was required to issue stop payment orders as regards the cheques which were obtained by the plaintiffs as and by way of post dated cheques. When such post dated cheques were obtained by the plaintiffs is nowhere stated in the correspondence or in affidavit in reply. The amount reflected in the cheques are odd amounts such as 2,04,522.50, 1,22,713.50 etc. It was the stand of the defendant that the post dated cheques were obtained by the plaintiffs in advance in blank is to be accepted. It is difficult to understand as to how the plaintiffs will fill in the amounts which would be of odd amount and not round figures. No explanation is coming forth from the defendant as to under what circumstances, the defendant had issued blank cheques to the plaintiffs, because in the normal course, a party would not issue blank cheques in favour of another party with whom contractual/financial obligations have not been finalised. To that extent the stand of the defendant that blank cheques were givens is not made out. Hence the explanation given by the defendant for dishonour of the cheques cannot be accepted. A reference to the tri-parte agreement is found in affidavit in reply being agreement dated 25.10.2007. To the said affidavit the copy of the agreement is annexed. The said agreement is not duly filled in and certain blanks are found. The signature of the parties who are supposed to sign the agreement are not found. If this is so, it was not obligatory for the plaintiffs to deal with it and therefore no adverse inference can be drawn against the plaintiffs and arguments based on the memorandum of understanding dated 25.10.2008, cannot be accepted.

The stand of the defendant that the complaint filed by the plaintiffs in regard to the suit cheques u/s 138 of the Negotiable Instruments Act has been dismissed and therefore this Court should grant unconditional leave to the defendant to defend the suit cannot be accepted as the point involved in the criminal trial are altogether different from the civil trial. In the absence of appropriate explanation coming forth from the defendant as regards dishonour of the cheques, the plaintiffs have made out a case and that defendant will have to be put to terms to contest the suit. Keeping in view the alleged liability to the extent of Rs. 25 lakhs (being the principle amount) I am inclined to direct the defendant to deposit in this Court the sum of Rs. 18 lakhs as part of condition to defend the suit. Hence the Order.

ORDER

Upon defendant depositing the sum of Rs. 18,00,000/- (Eighteen Lakhs Only), the defendant will be permitted to contest the suit by filing written statement.

The defendant to deposit the sum of Rs. 18,00,000/- on or before 17.11.2008 and then file the written statement directly in the Court on 21.11.2008. If the amount as above is deposited the same be invested in Fixed Deposit initially for a period of one year and to be renewed accordingly till further orders from the Court.

Summons for judgment is disposed of accordingly.