Santosh Bansal vs Paramjeet Singh

Valmiki J. Mehta, J

C.M. No.45600/2017 (exemption)

Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.45598/2017 (for condonation of delay)

For the reasons stated in the application, delay of 286 days in filing the appeal is condoned.

C.M. stands disposed of.

RFA No.1042/2017

This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the defendant in a suit filed under Order XXXVII

CPC, impugning the judgment of the Trial Court dated 1.12.2016 by which the trial court has dismissed the leave to defend application and decreed the

suit filed by the respondent/plaintiff for recovery of Rs.80 lacs.

The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of Rs.80 lacs pleading that this amount of Rs.80 lacs was

given as loan by the respondent/plaintiff to the appellant/defendant on 7.8.2014. The loan was to be repaid within 12 months but the

appellant/defendant failed to adhere to the time schedule. Ultimately on repeated persuasions the appellant/defendant issued four cheques bearing

nos.039648 to 039651 all dated 25.7.2016 in the sum of Rs.20 lacs each in the name of the respondent/plaintiff towards repayment of the loan amount.

The cheques however were dishonoured on account of insufficient funds and hence the suit.

The contention of the appellant/defendant in the leave to defend application was that in fact it was the respondent/plaintiff who had approached the

appellant/defendant for loan and the appellant/defendant expressed inability to provide any loan but on account of persuasions of the

respondent/plaintiff the appellant/defendant handed over to the respondent/plaintiff one cheque of the sum of Rs.500/- bearing no.039645 dated

16.1.2015. The appellant/defendant pleads that she however later found that four cheques from her cheque book were missing and therefore she gave

intimation to the police as well as to the bank. It was pleaded that the four cheques which were missing are in fact the four cheques on the basis of

which the respondent/plaintiff has filed the subject suit.

The respondent/plaintiff denied the case set up of the appellant/defendant in the leave to defend application by stating that the respondent/plaintiff

did not receive any cheque of Rs.500/- and that the four dishonoured cheques were given for repayment of the loan of Rs.80 lacs given by the

respondent/plaintiff to the appellant/defendant.

Trial court by the impugned judgment has refused to grant leave to defend by noting that the appellant/defendant did not in the leave to defend

application dispute that the four cheques were signed by her. The appellant/defendant also did not plead that the four cheques were not filled in the

handwriting of the appellant/defendant. Trial court also notes that the case of the appellant/defendant was that she informed the police about the

missing cheques but no such document was filed to show that such a complaint was made to the police. Trial court has also observed that it is very

strange that if four cheques were missing from the cheque book of the appellant/defendant and which were presented around one and half year after

the appellant/defendant found them missing, then there was no reason why in this long period the appellant/defendant did not intimate the bank to stop

the payments of these missing cheques. These aspects are noted in paras 7 and 8 of the impugned judgment and these paras read as under:-

“7. The defendant has nowhere denied her signatures on the above noted four cheques in question. Therefore, it was for her to explain

as to why she had kept four signed cheques with her at her residence. It is also not her case that she had kept the blank signed cheques

with her and that the amount and other particulars appearing on these cheques have not been filled up by her. It can safely be concluded

from the contents of the application for leave to defend that these cheques, originals of which are on record, bear the signatures of the

defendant and have also been filled up in her own handwriting. The cheques bear the name of the plaintiff as “payeeâ€. It has no where

been explained by the defendant that why she had kept with her signed cheques in the name of the plaintiff in the sum of Rs.20 lacs each.

As per the own contention of the defendant, the cheques have been stolen from her residence in the month of January 2015. Though she

has mentioned in the application that she gave intimation about the theft of cheques to the Police Station as well as to her bank but no such

document has been filed on record. It is thus difficult to believe at this stage itself that any such intimation has been sent by the defendant to

the Police Station or to be bank. Further the cheques are stated to have been stolen from the residence of the defendant in the month of

January 2015 whereas these have been presented for encashment by the plaintiff in the month of July 2016 i.e. after a gap of about one

and half years. It is not discernible from the perusal of the application for leave to defend as to why the defendant had not issued “stop

paymentâ€​ instruction to her bank with regards to these four cheques.â€​

I completely agree that in the leave to defend application the appellant/defendant had set out a false and concocted story and the trial court

therefore has given correct reasoning in paras 7 and 8 for rejecting the moonshine defence of the appellant/defendant.

Learned counsel for the appellant/defendant argued that there was no reason for issuing of four cheques, all of the same date and in fact one

cheque could have been issued for the amount of Rs.80 lacs, however, this argument in my opinion will not take the case of the appellant/defendant

any further because there need not be exact explanation on record of four cheques having been issued instead of one inasmuch as there is no dispute

that all the four cheques bear the signatures of the appellant/defendant and were dishonoured on presentation for the reason of insufficient funds and

the appellant/defendant did not file any copy of the police complaint whereby it was alleged that the cheques were missing and neither did the

appellant/defendant inform the bank to stop payment on the cheques on the ground that te cheques are missing from the cheque book of the

appellant/defendant.

There is no merit in the appeal. Dismissed.

C.M. No.45599/2017 (stay)

Since the appeal is dismissed, this application is disposed of as infructuous.