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TMI Blog2019 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant in cash without taking any receipt/acknowledgement from him, as also the fact that the respondent s criminal complaint filed under Section 138 of the NI Act, 1881 stands rejected in respect of the same cheque, I am unable to agree with the learned Trial Court that the appellant does not have any defence whatsoever or that his defence is wholly vexatious. It cannot be said that merely because the appellant failed to take the specific pleas, as urged before this Court, in his application/ affidavit for leave to defend, that such omission should disentitle him altogether from being granted leave to defend when the said affidavit clearly shows that he had, in no uncertain terms, stated that the whole transaction as set out by the respondent was concocted, fabricated and that no money had been exchanged between the parties. It is a settled legal position that the discretion to be exercised, while considering a prayer for grant of leave to defend the suit, would depend on the peculiar facts of each case and that the same cannot be put in any straitjacket formula. If the Court finds that the defence is wholly moonshine and sham, then leave to defend is liable to rejected; bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avings bank account of plaintiff s mother held in SBI, Dakshinpuri Branch, New Delhi and ₹ 60,000/- in cash. (c) ₹ 2,00,000/- on 19.11.2011, out of which ₹ 1,75,000/- was withdrawn from the plaintiff s bank account no. 30701035365 with SBI, Dakshinpuri, New Delhi-62, and ₹ 25,000/- in cash. (d) ₹ 1,00,000/- on 10.12.2011 from plaintiff s mother bank account at SBI, Dakshinpuri, New Delhi-62. (e) ₹ 3,00,000/- on 20.05.2012 out of which ₹ 80,000/- was withdrawn from his own bank account and ₹ 2,20,000 in cash. (f) ₹ 3,00,000/- on 02.12.2012 out of which ₹ 2,40,000/- was withdrawn from the plaintiff s bank account and ₹ 60,000/- in cash. 3. The respondent further claimed that the appellant had failed to repay the said loan amount and that, on his persistent demand, the appellant issued a post dated cheque bearing no.068141 dated 28.05.2013 drawn on UTI Bank Ltd. in the respondent s favour for a sum of ₹ 12 lakh. The respondent contended that the said post dated cheque, when presented, was returned on 01.08.2013 with the remark payment stopped by the drawer . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed over the cheque in question to the respondent. In these circumstances, the learned Trial Court passed the impugned order rejecting the appellant s application seeking leave to defend, after holding that his defence was frivolous and groundless and that he had neither denied the issuance of the cheque nor denied his signatures thereon. Resultantly, the learned Trial Court decreed the respondent s suit for a sum of ₹ 12 lakh with pendente interest at the rate of 12% p.a. and future interest at the rate of 6% p.a. 7. Impugning the aforesaid judgment, Mr. C. Mohan Rao, learned counsel for the appellant contends that the learned Trial Court has gravely erred in declining to grant leave to defend to the appellant even though the pleas raised by the appellant clearly show that his defence was fair and reasonable. He submits that the learned Trial Court failed to appreciate the appellant s primary contention that the blank cheques had never been given to the respondent but, instead, had been given to the respondent s father who was running a large scale business of chit fund committees and, therefore, possessed several cheques entrusted as security to him by various membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29.07.2003 and his leave application. Though the appellant, in his leave application, has taken a stand that he had never taken any loan from the respondent; in his police complaint, he has made a categorical statement that he had borrowed only a total sum of ₹ 3 lakh from the respondent. In furtherance of this contention, the learned counsel also draws my attention to the appellant s reply dated 26.08.2013 to the respondent s legal notice stating therein that he had obtained a loan of ₹ 1 lakh from the respondent s father. Mr.Rao further submits that the reliance by the appellant on the RBI notification or his plea regarding his participation as a member of a chit fund committee being run by the respondent s father are merely an afterthought which, by the virtue of not being raised in the application for leave to defend, ought not to be considered by this Court. By placing reliance on the decision of the Supreme Court in IDBI Trusteeship Services Limited vs. Hubtown Ltd., [(2017) 1 SCC 568], learned counsel for the respondent contends that once it is evident that the appellant has no substantial defence and that his defence is wholly frivolous and vexatious, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the plaintiff and defendant and without any necessity the alleged the loan was advanced and hence the claim of the plaintiff is without basis. xxx It is pertinent to mention here that no sensible person can advance the loan as mentioned above to a person who has defaulted many times and has not returned the loan amount and no sensible reason has been shown there is no agreement, no bank transaction and no cash receipt executed by the defendant, whole transactions are concocted, fabricated and no money has exchanged between the plaintiff and defendant as alleged. It is also pertinent to mention here that none of the above transactions were reflected in the income return of the plaintiff. 13. In these circumstances, when I consider the defence raised by the appellant viz. the respondent s claim that the entire purported loan amount was given by him to the appellant in cash without taking any receipt/acknowledgement from him, as also the fact that the respondent s criminal complaint filed under Section 138 of the NI Act, 1881 stands rejected in respect of the same cheque, I am unable to agree with the learned Trial Court that the appellant does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend to the entire principal sum together with such interest as the court feels the justice of the case requires. 15. When I examine the facts of this case in the light of the aforesaid legal position, I have no hesitation in coming to the conclusion that even though the appellant s defence may not be very probable, yet the same cannot be said to be wholly vexatious. The defence raised by the appellant is, no doubt, a plausible one and to reject the same as being moonshine or wholly frivolous at this stage would lead to miscarriage of justice. Thus, despite the fact that the appellant did not raise these vital issues specifically in his affidavit for leave to defend, interest of justice demands that he be granted an opportunity to lead evidence in support of his defence, though the same has to be subject to conditions. 16. For the aforesaid reasons, the decision of the learned Trial Court declining to grant leave to defend to the appellant cannot be sustained. The appellant is granted leave to defend, subject to his depositing 50% of the principal amount with the learned Trial Court within eight weeks from today. 17. The impugned judgment and decree are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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