2018 (12) TMI 1485 - HC - Indian Laws

Pre-deposit as a condition precedent for grant of leave - Held that - The petitioner appears to be an educated lady. As a prudent person she is not supposed to hand over signed blank papers/promissory notes /blank signed cheques to any one unless she owe money to such person hence it has been rightly held by the learned Trial Court that the defence of the petitioner appears to be highly improbable. Even as per Section 91/92 of the Indian Evidence Act, 1872 no contrary oral version is admissible unless fraud and misrepresentation is alleged, which is missing in this case as petitioner had failed to lodge any complaint to the police. Petition dismissed.

Summary

Issues:
Challenge to order in summary suit under Order XXXVII CPC for deposit condition, Allegations of improbable averments in the plaint, Misuse of blank signed papers/cheques, Maintainability of petition under Article 227 of the Constitution, Timeliness of filing leave to defend application, Admissions made in complaint case under Section 138 NI Act.

Analysis:
1. The petition challenges an order in a summary suit under Order XXXVII CPC where the Trial Court directed the petitioner to deposit 50% of the suit amount for leave to defend. The petitioner complied with the deposit condition and argued the averments in the plaint were improbable as the respondent was not the chartered accountant but a partner in a firm. Allegations of misuse of blank signed papers/cheques were made against the respondent.

2. The respondent raised three issues: a) the maintainability of the petition under Article 227 of the Constitution, b) timeliness of filing the leave to defend application, and c) admissions made by the petitioner in a complaint case under Section 138 NI Act. The respondent cited legal precedents to support the contention that a Revision Petition under Section 115 of CPC is the appropriate remedy against an order of grant of leave to defend.

3. Regarding the timeliness of filing the leave to defend application, it was argued that the application was filed prior to the service of the summons for judgment, which was deemed acceptable. The respondent highlighted the legal notice issued under Section 138 NI Act, where the petitioner admitted certain dealings with the respondent, including handing over blank signed papers/cheques.

4. The respondent pointed out inconsistencies in the petitioner's statements regarding the handing over of signed papers/cheques, which cast doubt on the petitioner's defense. The Trial Court found the defense improbable, citing the Indian Evidence Act and the presumption of consideration for issuance of a cheque under Section 118 NI Act. The Court upheld the order directing the deposit of 50% of the suit amount, subject to the final trial outcome.

5. Ultimately, the Court found no irregularity in the impugned order and dismissed the petition, with pending applications. The judgment highlighted the importance of maintaining consistency in statements and the legal principles governing the presumption of consideration for cheques.