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TMI Blog2013 (2) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants 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 terms and conditions orally agreed to, were to be reduced into writing but were not so reduced but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbers 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, 2007 and on which date as per the averments in the plaint also, the question of the defendants admitting liability in any amount by giving a cheque therefor to the plaintiff did not arise. Attention is invited to Section 87 of the NI Act providing that any material alteration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.10.2008 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 placed on Amit Garg Vs. Raminder Singh 190 (2012) DLT 335 where on the basis of comparison of the signatures on the application for leave to defend and the disputed signatures, the leave to defend was refused. Relying on Section 20 of the NI Act, it is contended that delivery of a blank cheque is prima facie authority to the holder thereof to fill up the same. Reliance in this regard is placed on V.K. Enterprises Vs. Shiva Steels (2010) 9 SCC 256 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-à-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 letter dated 12.10.2008 bearing the stamp of postage at Dehradun. If indeed the letter dated 12.10.2008 has been forged and fabricated by the plaintiff as alleged by the defendants, it was not at all difficult for the plaintiff to have the same posted from Dehradun. 17. Though the counsel for the plaintiff has argued that signatures of the defendant No.2 thereon are similar to the signatures of the defendant No.2 on the leave to defend application and though at least one Single Judge of this Court in Amit Garg supra has at the stage of leave to defend undertaken ocular comparison of the disputed signature with the admitted signature, but I refrain from venturing into the said arena. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission 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 investments / contribution of the plaintiff or amounts incurred by the plaintiff, made in/to/on behalf of the defendant No.1 Firm, the defendants having done so, impliedly authorized the plaintiff to fill up the amount thereon and realize thereunder the monies due to him. It is significant that though the defendants admit parting of ways with the plaintiff in the year 2008 but even then did not care to stop payment of the said cheque which would have been done if the defendants even then felt that the plaintiff may misuse the said cheque. It is settled law that it is open to a person to sign and deliver a blank or incomplete instrument, and it is equally open for the holder to fill up blanks and specify the amount therein. In Scholfield Vs. Lord Londesborough (1895) All E R 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, 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. 24. I also find merit in the plea of the plaintiff of the cheques for Rs.5,00,000/- each having been drawn up on account of the plaintiff with the branch of the Bank at New Delhi. It is the branch of the Bank with which the account is held which is of relevance for determining territorial jurisdiction. In today‟s day and time of electronic banking, it is possible to operate an account from any branch whatsoever. 25. I am therefore convinced that the pleas of the defendants in the application for leave to defend do not disclose any substantial defence and are frivolous, vexatious and moonshine. 26. The application of the defendants for leave to defend is accordingly dismissed. 27. Axiomatically, the plaintiff becomes entitled to a decree for the principal sum of Rs.21,21,550/-. However, as far as the claim of the plaintiff for interest is concerned, no rate of interest having been agreed upon between the parties, the plaintiff cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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