TMI Blog2013 (2) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 was preferred by the defendants No . 1 2 thereagainst and which was allowed vide judgment dated 09 . 04 . 2012 ( corrected on 30th May, 2012 ) and the matter remanded . Arguments on the application of the defendants for leave to defend have been heard . 2 . It is the case of the plaintiff, ( i ) that he and the defendant No . 2 Mr . Tarun Gautam had in or about the year 2000 - 03 worked together in a company; ( ii ) that the defendant No . 2 even after leaving the employment remained in touch with the plaintiff and informed the plaintiff that he along with the defendants No . 3 and 4 viz . Mrs . Ratnesh Gautam and Mr . Sumit Gautam, had commenced business in partnership in the name and style of defendant No . 1 Firm; ( iii ) that the defendants No . 2 to 4 in the year 2006 - 07 persuaded the plaintiff to join the defendant No . 1 Firm as a working partner ‟ , on the understanding that the amounts given by the plaintiff to the defendant No . 1 Firm and / or incurred by the plaintiff in the business of the defendant No . 1 Firm would be returned to the plaintiff together with interests at the rate of 2 % per mensem ; ( iv ) however though the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the plaintiff had loaned to the defendant No . 1 Firm and no other amount; ( iv ) that the dishonoured cheque was stolen in the year 2007 as is evident from the Statement of Accounts, as the cheques of the preceding two serial numbers had been encashed from the defendants account on 05 . 05 . 2007 and the cheque of the succeeding serial number had been encashed from the defendants account on 07 . 05 . 2007 . It is further pleaded that cheque in question i . e . cheque No . 998688 must have been signed at around the same time by the defendant No . 2 which was subsequently stolen from his possession . 4 . The defendants, besides applying for leave to defend have also filed IA No . 3168 / 2012 under Order 7 Rule 10 of the CPC for return of the plaint owing to this Court not having territorial jurisdiction to entertain the suit . 5 . The counsel for the defendants has argued that the dishonoured cheque in the present case cannot be an admission of liability on the part of the defendants since from the date of the encashment of the cheques of the serial numbers immediately before and after the said cheque, it is apparent that the said cheque is of May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant No . 1 Firm under the signature of defendant No . 2 as Managing Partner has confirmed the total outstanding towards the plaintiff at Rs . 21,21,550 /-. Attention is yet further invited to the balance sheet of the defendant No . 1 Firm as on 31 . 03 . 2007 where unsecured loan of the plaintiff to the defendant No . 1 Firm of Rs . 10,00,000 /- is shown . Qua the challenge by the defendants to the letter dated 12 . 10 . 2008 under cover of which the cheque for Rs . 21,21,550 /- is stated to have been sent by the defendants to the plaintiff, it is stated that the said letter was received by the plaintiff at Delhi by registered post AD in an envelope bearing the stamp of posting of the Post Office at Dehradun . It is contended that the denial by the defendants with respect to the said letter is vague and without any particulars . Attention is also invited to the second proviso to Order 37 Rule 3 ( 5 ) of the CPC to contend that in the face of the admission by the defendants of the liability in the sum of Rs . 12,20,000 /- , the defendants before being heard on the application for leave to defend are liable to be directed to deposit the said amount . Reliance is plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation loaned a sum of Rs . 12,20,000 /- to the defendant No . 1 Firm . 14 . The dispute thus is really of the balance sum of Rs . 9,01,550 /- out of the total principal claim amount of Rs . 21,21,550 /-. The claim for the said amount is on account of various expenses which the plaintiff claims to have incurred on the oral assurance of, and in accordance with the verbal understanding with, the defendants . The claim for the said amount would not fall within the ambit of Order 37 of the CPC save on the basis of the amount thereof being included in the dishonoured cheque for the total sum of Rs . 21,21,550 /- , out of which as aforesaid Rs . 12,20,000 /- is admitted as due . 15 . In the circumstances, in my opinion, the whole controversy revolves around the credence to be given to the defence of the defendants vis - - vis the said cheque . 16 . As far as the reliance by the plaintiff on the letter dated 12 . 10 . 2008 under cover of which the plaintiff claims the said cheque was sent by the defendants to the plaintiff is concerned, in my view, at this stage, the said letter cannot be accepted . I do not give any wheitage to the envelope containing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the words stolen by the defendants ‟ also shows that if it had been so, in the ordinary course of business a Police complaint or at least a report to the Bank for stopping the payment of the cheque would have been made . The defendants are carrying on business and have been preparing and filing balance sheets . Upon a signed cheque going missing, at least at the end of the year while preparing the balance sheets and for which audit would essentially have been conducted, the missing cheque would have been detected and at least then report would have been made . 20 . What also intrigues me is that the defendants, inspite of receipt of the legal notice did not reply thereto . Ordinarily a person / party faced with the allegation of commission of an offence under Section 138 of the NI Act would immediately respond, specially if the cheque was stolen . The conduct of the defendants shows that the defendants were sitting over the fence and the pleas taken in the leave to defend are nothing but an afterthought . 21 . Even if one is to believe, though not pleaded, that the dishonoured cheque was given to the plaintiff in blank as security for the investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Statement of Account on which the counsel for the defendants even during the hearing did not dispute the signatures or sought to give an explanation therefor . 23 . As far as the plea of the defendants of territorial jurisdiction is concerned, the defendants have not disputed that the plaintiff is now a resident of Delhi . The defendants admit their liability at least in the sum of Rs . 12,20,000 /- to the plaintiff . I have during the hearing asked the counsel for the defendants whether the Courts at Delhi would not have territorial jurisdiction to entertain the suit on the principle of debtor must seek the creditor ( See L . N . Gupta Vs . Tara Mani 24 ( 1983 ) DLT 184 State of Punjab Vs . A . K . Raha ( Engineers ) Ltd . AIR1 964 Cal 418 and Mrs . Shradha Wassan Vs . Mr . Anil Goel MANU / DE / 0490 / 2009 ). The defendants as debtors, even if situated out of the territorial jurisdiction of this Court, are required to discharge their admitted liability to the plaintiff at Delhi and this Court on the basis of the said principle alone, will have territorial jurisdiction . No answer is forthcoming from the counsel for the defendants . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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