9911796707
TMI Blog2015 (2) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... granting any relief in this appeal, we do not wish to go into the said issue vis- -vis the judgment relied upon by counsel for the Appellant and we leave it open for consideration as and when appropriate case arises before us. In the case on hand Respondent No. 1/Bank has been already dropped from the proceedings by order dated 1.11.2003 which has become final and conclusive. Therefore, in the first instance, even if the Appellant was to be permitted to proceed with the complaint as against Respondent No. 2, very many issues as regards how the pay order came to be issued and the return of the same by Respondent No. 1/bank would attract the penal provisions of Section 138 etc., which cannot be examined in the absence of the concerned acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Respondents. 2. To trace the brief facts, the Appellant claimed that it entered into an agreement of sale on 4.3.2003 with M/s. A.D. Exports Private Limited for the sale of an undescribed property at Hansi, District Hisar in the State of Haryana for ₹ 74,86,000/- against which the said M/s. A.D. Exports Private Limited agreed to pay earnest money of ₹ 44,86,000/- and gave a pay order drawn on first Respondent Bank. The pay order was presented on 5.3.2003 and it was returned on 12.3.2003 with the endorsement refer to drawer, account attached . The complaint under Section 138 of the Negotiable Instruments Act came to be filed on 6.5.2003. Summons were issued on the Respondents on 7.5.2003. Application for recalli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Appellant, inasmuch as the Appellant did not come forward with the full description of the property with reference to which the agreement was stated to have been reached on 4.3.2003 for a huge sale consideration of ₹ 74,86,000/-, for which pay order for the value of ₹ 44,86,000/- was handed over on condition of delivery of the document of title and possession. Learned senior counsel further contended that de hors the said serious doubt as regards the genuineness of the very transaction as between the Appellant and M/s. A.D. Exports Private Limited, the other question which looms large before this Court is as to the very applicability of Section 138 of the Negotiable Instruments Act, inasmuch as none of the ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in detail, we were not able to discern any definite principle laid down therein as to how far Section 138 of the Negotiable Instruments Act can be applied with reference to a 'Bill of Exchange' as against 'cheque'. Section 138 has been set out in detail by making specific reference to the 'drawer' of the 'cheque' by a person on an 'account' maintained by him for payment of any amount of money from out of 'that account' for the discharge of any debt or other liability because of non-availability of that amount of money standing to the credit of 'that account' was insufficient or it exceeded the amount arranged to be paid from 'that account' by way of an agreement made w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of necessary pleadings with particular details as regards the property based on which the transaction was stated to have been entered into between the Appellant and M/s. A.D. Exports Private Limited there is every justification in the stand of the Respondents to doubt the full transaction as between the Appellant and M/s. A.D. Exports Private Limited. More so, when a huge sum of ₹ 44,86,000/- was stated to have been parted by the said agreement holder to the Appellant who agreed to handover the possession and along with the title deeds. Here again, we do not wish to go into the details of the said stand raised on behalf of Respondents but yet we only state that such a stand definitely creates very serious doubts about the whol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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