2019 (5) TMI 1612 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - whether the defence raised by the appellant is bonafide and probable; has the appellant been able to raise a triable issue or whether the defence of the appellant is moonshine, sham, bogus and malafide? HELD THAT - A reading of the leave to defend application, more particularly, paragraph 6, which has been extracted by the learned Single Judge in detail, would show that the appellant had consistently taken a stand that he would be taking action against the respondent for the illegal acts committed but no such action has been initiated. The signatures on the agreement are not disputed. Handing over of cheques and part payments made during this period are clearly indicative of the acknowledgement of debt and liability by the appellant. Another factor which cannot be ignored is that to clear the debt, the appellant had also sought permission of the respondent to involve overseas investors, which was obviously an act by the appellant to clear his debt. In response to the stand taken by the respondent that no criminal complaint had been filed, counsel for the appellant submits that he had filed a petition under Section 482 Cr.P.C. for quashing of the proceedings under Section 138 of the Negotiable Instruments Act. He submits that he had agitated this question before the learned Single Judge of this Court and the Court granted liberty to raise the grounds before the concerned court. The learned Single Judge has rightly dismissed the application of the appellant seeking leave to defend - appeal dismissed.

Summary

Issues Involved:
1. Liability of the appellant for the investment made by the respondent.
2. Validity of agreements signed under alleged coercion, pressure, and undue influence.
3. Entitlement to unconditional leave to defend based on triable issues.
4. Validity of the proceedings under Section 138 of the Negotiable Instruments Act.
5. Alleged extortion by the respondent.
6. Admissibility of evidence and acknowledgment of debt.
7. Applicability of legal precedents and principles for granting leave to defend.

Detailed Analysis:

1. Liability of the appellant for the investment made by the respondent:
The appellant contended that the investment of ?3,24,54,000/- was made with M/s. Integrity Geosciences Pvt. Ltd., and thus he alone should not be held responsible for the repayment. However, the respondent argued that the appellant had acknowledged the debt multiple times through various agreements and post-dated cheques, making him liable for the repayment.

2. Validity of agreements signed under alleged coercion, pressure, and undue influence:
The appellant claimed that the agreement dated 23.08.2012 was signed under coercion, pressure, undue influence, and threat of criminal proceedings. The respondent countered that the appellant had consistently acknowledged the debt over several years and had not taken any legal action to challenge the agreements. The court found the appellant's defense of coercion and undue influence to be "completely sham and moonshine," noting that no complaints were filed over the years.

3. Entitlement to unconditional leave to defend based on triable issues:
The appellant argued that he raised triable issues and was entitled to unconditional leave to defend. The respondent maintained that the appellant's defense was not bona fide but rather "sham and moonshine." The court concluded that the appellant's defense was frivolous and vexatious, and thus, leave to defend was rightly denied by the Single Judge.

4. Validity of the proceedings under Section 138 of the Negotiable Instruments Act:
The appellant sought quashing of the proceedings initiated by the respondent under Section 138 of the Negotiable Instruments Act, claiming they were illegal and a result of coercion. The court noted that the appellant had not initiated any legal action against the respondent for the alleged coercion and that the defense was not plausible.

5. Alleged extortion by the respondent:
The appellant contended that the recoveries sought by the respondent amounted to extortion. The respondent argued that the appellant had acknowledged the debt and made part payments, indicating a genuine liability. The court found no merit in the appellant's claim of extortion, given the consistent acknowledgments of debt.

6. Admissibility of evidence and acknowledgment of debt:
The respondent presented multiple agreements and post-dated cheques as evidence of the appellant's acknowledgment of debt. The appellant's signatures on these documents were not disputed. The court found that the appellant's actions, including part payments and seeking permission to involve overseas investors, indicated acknowledgment of the debt.

7. Applicability of legal precedents and principles for granting leave to defend:
The court referred to the principles laid out in the case of IDBI Trusteeship Services Limited vs. Hubtown Limited, particularly para 17.5, which states that if the defendant has no substantial defense and raises no genuine triable issues, leave to defend should be refused. Applying this precedent, the court found that the appellant raised no substantial defense or genuine triable issues, and thus, the respondent was entitled to judgment.

Conclusion:
The court dismissed the appeal, upholding the Single Judge's decision to deny leave to defend, finding the appellant's defenses to be frivolous, vexatious, and without merit. The appellant was held liable for the debt acknowledged in the agreements and post-dated cheques.