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Goyal Tax Feb. Pvt. Ltd. Versus Anil Kapoor Proprietor Supriya

2001 (4) TMI 935 - DELHI HIGH COURT

Dated:- 11-4-2001 - A.K. Sikri, J. ORDER A.K.Sikri, 1. Plaintiff has filed the Suit for recovery of ₹ 5,78,931/-under order xxxvII of the Code of Civil Procedure. It is mentioned that the Suit is based on cheques by the defendants to the plaintiff. Some of these cheques on presentation were dishonoured and some of the cheques were not presented at all. On summons of judgment having served upon the defendant the defendant moved this IA seeking unconditional leave to defend. 2. In the Suit i .....

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came due are covered by challans dated 12th June, 1997, 22nd August, 1997, 5th September, 1997, 17th September, 1997, 1st November, 1997, 3rd November,1997, 12th November, 1997, 29th November, 1997, 18th June, 1998 20th november, 1998, 4th December, 1998, 20th January, 1999 and 30th January, 1999. These goods were received by the defendant against receipt thereof and to cover up this liability the defendant issued the following cheques:- S.No. CHEQUE NO. DATED AMOUNT (in Rs.) 1. 503253 05.06.98 .....

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fendant, when the defendant did not make the payment present Suit for recovery was filed seeking a sum of ₹ 4,59,469/- representing these cheques and ₹ 1,19,462/- towards agreed interest @ 24% per annum on this principal amount. 4. The defendant in leave to defend application, has denied any liability though it is admitted that there were dealings between the parties. The grounds on which the leave to defend is prayed for can be summarised as under:- 1. The Suit is not maintainable u .....

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interest was also not maintainable under the provisions of Order xxxvII of the Code of Civil Procedure more particularly when there was no clause for payment of interest in the agreement/contract between the parties nor was it mentioned in the bills. 3. On merits it was submitted that the cheques in question were without consideration. The defendant had given post-dated 11 cheques but no goods were supplied against these cheques. This would be clear from the fact that cheques related to the per .....

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nt of account world also reveal that a sum of ₹ 13,700/- on 5th December, 1998, ₹ 18,500/- on 15th January, 1999 and ₹ 21,500/- on 20th January, 1999 was given in cash. This clearly indicates that there was no question of issuance of cheques for consideration. 4. No goods were received through the bill no.14 dated 12.6.97 for ₹ 1,12,956/-, bill number 334 dated 20th January, 1999 for ₹ 18,264/-, bill number 349 dated 30th January, 1999 for 17,213/. 5. Most of the go .....

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nce all the cheques were drawn on Indian Bank, Janakpuri Branch, New Delhi not once or twice but 12 times there was no logic or purpose in presenting the balance cheques. It is also contended that the interest is claimed in the plaint by way of consequential relief which arises because of non-payment of due amount against the defendant. The rate of interest is claimed on the basis of oral mutual agreement between the parties and prevalent market rate. Plaintiff has further denied that no goods w .....

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e examined are laid down in the celebrated judgment of the Apex Court in the case of Mechalec Engineering and Manufacturer versus Basic Equipment Corporation . Following principles were laid down in this case:- (a) If the defendant satisfies the Court that he has a good defense to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a friable issue indicating that he has a fair .....

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establish a defense to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave ti defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defense or the defense set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entit .....

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present case, it cannot be said that the defense taken by the defendant in leave to defend application is totally sham. There are certain circumstances, couples with certain acts on the part of the plaintiff which may prima facie raise some doubt the credibility of its version and may lend some credence to the defense taken by the defendant that the cheques in question were without consideration. Although as the plaintiff, four cheques were presented to the banker and each time they were dishono .....

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single letter or serve notice upon the defendant for payment of the alleged outstanding amount before filing the Suit is baffling to the mind. Now let us examine this aspect further in the context of the submissions made by the defendant on the basis of statement of account filed by the plaintiff itself. As per the statement of account the case of the plaintiff is that the cheques were given against supply of goods by specific bill/challan numbers, particulars whereof are given in para 5 of the .....

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