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

R.Y. Ganoo, J.—This suit is filed on the ground that four cheques totalling to Rs. 15 Lakhs and add amount due by the defendant were dishonoured. The plaintiffs are advertising agency and the defendant used to place orders with the plaintiffs for publication of advertisement and as such the defendant was liable to pay money to the plaintiffs from time to time before the cheques set out in para 2 of the plaint have been dishonoured with the remark "refer to drawer" The defendant has come out with the stand in the affidavit in reply that the Orders placed by the defendant were cancelled and the plaintiffs were not to deposit the cheques in the bank and inspite of that understanding the plaintiffs deposited the cheques in the bank and the cheques were dishonoured. In so far as this aspect is concerned, a vague mention is found in the affidavit in reply in para 21 and no details are coming forth as to when the orders were cancelled. The defendant has relied upon two letters dated 1.3.12.2007 by which he wants to suggest that the transaction between the defendant and plaintiffs are cancelled and the cheques should be returned. These letters have been issued after the cheques were dishonoured by the bank. This is being stated on the ground that the dishonoured memos are dated 12.12.2002, to that extent the stand of the defendant that the Orders were cancelled is not made out.

The defendant has contended that a tripartite agreement between the plaintiffs, defendants and one M/s. Interactive Tradex India Ltd. was entered into on 25.10.2002 and as a result of the said tripartite agreement the complexion of the relations between the plaintiffs and the defendant got changed and as such defendant was not liable to pay any amount to the plaintiffs. A copy of the said tripartite agreement is annexed to the affidavit in reply. The said agreement is not duly filled in and there are blanks at many stages. The said agreement does not bear signatures of the parties concerned. It was sought to be argued by learned Advocate Mr. Shah that the plaintiffs have not dealt with this tripartite agreement and the rejoinder and hence the case of the defendant to that extent be accepted. In the absence of proper executed document i.e. in the faceoff absence of signatures of the respective parties and certain blanks one cannot treat this document as having been executed and therefore no fault can be found with the plaintiffs in not dealing with that document.

It was sought to be contended by the learned advocate for the defendant that the plaintiffs have not produced accounts and therefore the defendant is entitled to unconditional leave as triable issues are raised. The record shows that the parties were transacting and the defendant issued cheques. Since the defendant has not been able to come out with the full details as to when the order was cancelled, the stand of the defendant cannot be accepted.

An argument was advanced that the complaint filed by the plaintiffs u/s 138 of the Negotiable Instruments Act in regard to the suit dishonoured cheque has been dismissed by the learned Metropolitan Magistrate. This aspect of dismissal of the complaint cannot be mixed up with the Civil Suit filed by the plaintiffs and the two remedies are independent and the result of the criminal complaint shall not affect the merits of the suit based on dishonour of the cheques.

In my view, the defendants can be granted leave to defend the suit on depositing Rs. 10,00,000/-. Hence the Summons for Judgment is disposed of by passing the following Order.

ORDER

Upon defendant depositing the sum of Rs. 10,00,000/- (Rupees Ten Lakhs) on or before 12.11.200S, the defendant would get chance to defend the suit. Defendant to deposit the aforesaid amount on or before 12.11.2008.

Defendant to file written statement in the Court directly on 17.11.2008.

If the amount as above is deposited the same shall be invested in a Fixed Deposit initially for a period of one year and to be renewed accordingly till further orders from the Court.

To be shown in the column of filing of documents. Adjourned to 17.11.2008.