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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 ..... nk Ltd., Borivali (W), Borivali, Mumbai-400066 4. 000111 Rs. 28,00,000/- 31.12.2019 HDFC Bank Ltd., Borivali (W), Borivali, Mumbai-400066 5. 000112 Rs. 5,00,000/- 31.12.2019 HDFC Bank Ltd., Borivali (W), Borivali, Mumbai-400066 6. 000107 Rs. 27,00,000/- 31.12.2019 HDFC Bank Ltd., Borivali (W), Borivali, Mumbai-400066 2. The facts in the present case lie within a very narrow compass. It is the Plaintiff's case that, in the year 2018, Defendant Nos. 2 and 3 had approached the Plaintiff with 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued upon. In support of his contention, he placed reliance upon a judgment of this Court in the case of Motilal Laxmichand Salecha HUF Vs. M/s Mour Marbles Industries Pvt. Ltd. & Ors. Summons for Judgment No. 64 of 2016 (18th April, 2018) (S. C. Gupte, J.), which inter alia held as follows viz., "5 Merely because while narrating the facts of the case the grant of loan by the Plaintiff to the Defendants finds a mention, merely as a historical narration, it cannot be said that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter, it was clear that the parties had agreed to share the profits from the joint venture proportionately. He therefore submitted the cheques were issued in keeping with the agreement between the parties and not as and by way of repayment of any loan. Learned counsel then submitted that, given the express wordings used in the said letter, there was no doubt that the amounts transferred by the Plaintiff to Defendant No. 1 were purely investments and not loans. 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. Mohand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant, he may discharge the same only when it is raised. The Code does not put any embargo on the courts exercising a suo motu power of granting leave in a case of this nature. If a court does so even when an application was not filed, keeping in view the admitted position of the case, we do not see any illegality therein. As a decree in summary suit may not be automatic and the court can always refuse to exercise its discretionary as the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gannath (Dead) by LRS (1994) 1 SCC 1 had set out the consequences which must follow in cases where a parties case is based on falsehood and in that context observed as follows viz., "5. ................. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever 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. BO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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