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TMI Blog2023 (6) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... nally, as has been held in the case of MOTILAL LAXMICHAND SALECHA, HUF VERSUS M/S. MOUR MARBLES INDUSTRIES PVT. LTD. ORS. [ 2018 (4) TMI 1950 - BOMBAY HIGH COURT] that once a party issues a cheque for repayment of a loan, then the liability under the loan is substituted by the liability to honor the cheque and in a sense the original liability to pay the loan is discharged by means of execution of cheque. And in the event such cheque is not honored, a new liability arises under the provisions of the Negotiable Instruments Act. In the present case, the Defendants have not denied issuance of the said cheques but have only attempted to contend that the same were for return of investments and not loans. That argument is not open to the Plaintiff anymore in view of the ratio laid down in the case of Motilal Laxmichand Salecha HUF. Thus even on merit the Defendants contentions are untainable and devoid of merit. Since there was no contract as regards the rate at which the interest was to be charged on the said amount of Rs. 1,47,64,000/-, it would be justifiable to apply the interest at 12% per annum from 31st December, 2019, the date on which the cheques drawn by the Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a request for financial help for funding the Defendants construction business. The Plaintiff considering the request of Defendant Nos. 2 and 3, had extended financial assistance to Defendant No. 1 to the tune of Rs. 1,20,64,000/-. Subsequently, it is the Plaintiff s case that the Defendants had agreed to repay the amount advanced along with compensation as more particularly set out in the letter dated 10th October, 2019. The said cheques were sent to the Plaintiff by the Defendants along with this letter. 3. However, when the said cheques were presented for clearance on 27th March, 2020, they were all returned dishonored with the caption Insufficient Funds . The Plaintiff thereafter vide their advocate s notice dated 9th July, 2020, called upon the Defendants to make payment of the amounts mentioned in the said cheques. However, despite due receipt of the advocate s notice, the Defendants failed and neglected to either respond to the same or make payment in terms of the work in respect of which the said cheques were drawn. 4. It is thus that the present Summary Suit came to be filed. Submissions of Mr. Thorat, on behalf of the Plaintiff. 5. Mr. Thorat learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit is for recovery of loan. The moment payment is made by a cheque or another negotiable instrument of a loan, the liability under the loan is substituted by the liability to honour the cheque or the negotiable instrument, as the case may be. In fact, in a sense, the original liability to pay the loan is discharged by means of execution of the negotiable instrument. If this negotiable instrument is not honoured upon presentation for payment, a distinct and new liability arises under the provisions of the Negotiable Instruments Act. Learned counsel then submitted that the said judgment had been upheld by a Division Bench of this Court. Basis this, learned counsel submitted that the present Suit was not only maintainable but also that, there was no dispute and/or denial to the Plaintiff s claim either in fact or in law. 8. He then, without prejudice to the above, submitted that the Defendants had only for the first time in the Affidavit-in-Reply to the Summons for Judgment raised various frivolous contentions which were both legally and factually untenable. He submitted that the same was done only in an attempt to confuse and obfuscate the undisputed facts of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. He then, in respect of his second contention, submitted that even assuming that the said letter was valid and binding the same being the contract between the parties must (a) be read as a whole and (b) construed strictly in terms thereof. He then invited my attention to the said letter and pointed out that the same categorically provided that the said cheques were to be deposited only with the consent of the Defendants. He pointed out that the Plaintiff had however proceeded to deposit the said cheques without obtaining the Defendants consent and thus in violation of the terms of the said letter. He then placed reliance upon the following judgments of the Hon ble Supreme Court in the case of Bank of India Vs. K. Mohandas (2009) 5 SCC and Rajasthan State Industrial Development and Investment Corporation Anr. Vs. Diamond Gem Development Corporation Limited Anr. (2013) 5 SCC to submit that the true construction of a contract will depend upon the import of the words used therein and not what parties choose to do or say afterwards. He therefore submitted that the Plaintiff having deposited the said cheques without obtaining to the consent of the Defendants had act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original documents were not produced and, thus, the plaintiff is called upon to prove that the documents are lost in the criminal proceedings. 14. Basis the above submissions, learned counsel submitted that several triable issues had arisen in the present case and thus the Defendants were entitled to unconditional leave to defend the present Suit. 15. I have heard learned counsel, perused a copy of the pleadings as also the documents relied upon and case laws cited and find that the Defendants have disentitled themselves from obtaining leave to defend the present Suit solely on the ground that the Defendants have made a false statement on oath in the Affidavit-in-Reply. One of the contentions taken by the Defendants was that the Plaintiff has fraudulently altered the letter dated 10th October, 2019 which is annexed by the Plaintiff as Exhibit-A to the Plaint. The Defendants have in the Affidavit-in-Reply produced what they claim is the original letter which is annexed as Exhibit C thereto. It is the Defendants contention that the Plaintiff has in Exhibit A to the Plaint overwritten the name of Tejal V. Bhawani in place of the name of Mr. Manish Bhawani which appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who s case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. The Apex Court and this Court have, on many occasions, stated that if a party comes to the Court with unclean hands or basis its case and/or defence on falsehood, as has been done in the present case, the party should be dealt with very strongly and substantial costs also should be imposed on the party. The conduct of a party intends to impede and prejudice the administration of justice the same must be dealt with finally. Judiciary is the bedrock and handmaid of orderly life and civilized society. In Sciemed Overseas Inc. V/s. BOC India Ltd. 2016 AII SCR 370 the Apex Court has lamented about the unhealthy trend in filing of affidavits which are not truthful. Paragraph 2 of the said judgment reads as under: 2. A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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