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TMI Blog2023 (6) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... een the case, it was incumbent for the Defendant to have made this clear in writing at the time the cheque was handed over. Presumably the Defendant did not do so as monies were being lent and accepted in cash as is the case of the Plaintiff. While there is no doubt that the presumption under Section 139 of the Negotiable Instruments Act in this case arises, it is well settled that the same is a rebuttable presumption. Leave to defend the present Suit is granted to the Defendant subject to depositing a sum of Rs. 50,00,000/- within a period of six weeks from today - If the aforesaid deposit is made within the stipulated period, this Suit shall be transferred to the list of Commercial Causes and the Defendant shall file written statement within a period of six weeks from the date of deposit - Application disposed off. - COMMERCIAL SUMMARY SUIT NO. 45 OF 2022 WITH SUMMONS FOR JUDGMENT NO. 27 OF 2022 IN COMMERCIAL SUMMARY SUIT NO. 45 OF 2022 - - - Dated:- 23-6-2023 - ARIF S. DOCTOR, J. For the Plaintiff : Mr. Suneel D. Mogre, Plaintiff in person is present. For the Defendant : Mr. Rohan Savant a/w Akansha Saxena i/by Sanjay Gawde. JUDGMENT.: - 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, Plaintiff in person. 3. Mr. Mogre, at the very outset submitted that the Defendant had admitted his signature on the said cheque and had thus accepted his liability in respect of the same. He therefore submitted that the presumption under Section 139 of the Negotiable Instruments Act would squarely apply to the facts of the present case. In support of his contention, he placed reliance upon judgment of the Hon ble Supreme Court in the case of Rangappa Vs. Sri Mohan (2010) 11 SCC 441, in which, the Hon ble Supreme Court held viz., 13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then o the accused to raise a probate defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probate. 4. Mr. Mogre thus submitted that the Defendant could not now dispute his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Depth Entertaining Arts Pvt. Ltd. Ors. 2016 SCC OnLine 10400, in which, this Court was pleased to observe as follows viz.: - Unless the courts start discouraging flimsy defences. acceptability of cheques would not increase. The problem of unaccounted money would be reduced if transactions take place by cheque. Even a cash advance when repaid by cheque gests accounted. Making it unrecoverable, would only push the persons to extra judicial methods of recovery. The courts would thus not only be defeating the object of the provision but also Indirectly be party to increase lawlessness. This, in my humble view, cannot be allowed by courts. 7. Similarly, Mr. Mogre submitted that once a cheque drawn for the discharge of a debt, the same becomes enforceable as a contract even if the underlying debt is time barred and/or otherwise not recoverable. In support of his contention, learned counsel placed reliance upon a judgment of this Court in the case of M. Shantilal Co. Vs. Abbaji Maruti Jadhav and Another 2019 SCC Online Bom 4356, in which, this Court held as follows. 11. In the circumstances, once cheque is drawn for discharge of a time barred debt, it creates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sbursal of any amount by the Plaintiff to the Defendant, (ii) that the amount of Rs. 2,25,00,000/- remained completely unexplained both in terms of when and how the said liability arose and also as to its quantification and (iii) that the letter reflected that initially i.e. in the year 2014, the Defendant had issued a cheque of Rs. 1,50,00,000/- in the name of the Plaintiff s son and subsequently in the year 2016, the Defendant had issued a cheque of Rs. 1,95,00,000/- in the name of the Plaintiff and again in the year 2017 and 2021, the Defendant had issued two cheques in the name of the Plaintiff, but the amount had increased to Rs. 2,25,00,000/-. He submitted that the Plaint was also entirely silent as all these details which remained unexplained by the Plaintiff. He submitted that the Plaintiff was silent on all these relevant aspects since infact there was no amount due and payable to the Plaintiff who had never lent money to the Defendant but who had infact misused security cheques given to him by the Defendant for due repayment of loans advanced by others, which loans had all been duly repaid. He thus submitted that the Defendant was entitled to unconditional leave to def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention, he pointed out that both the spelling and handwriting appearing on the said cheque were same as that on the deposit slips thus making it apparent that the Defendant could never have filled in the said cheque. He then pointed out that the Plaintiff had in cross-examination stated that the deposit slip was filled in by the Plaintiff s clerk on his instructions. He therefore submitted that it was plain that it was the Plaintiff and/or his clerk who had filled in both the cheque as well as deposit slip. He then submitted that the Plaintiff s explanation qua the said deposit slip also begged disbelief since had the Plaintiff indeed deposited the said cheque on 27th April, 2021 as claimed, the presentation thereof on 23rd May, 2021 was patently delayed and nor as per standard banking norms. 14. Learned counsel then invited my attention to paragraph No. 4 of the letter dated 11th June, 2021 and pointed out that it was the Plaintiff s case therein that the three cheques i.e. (i) cheque dated 23rd January, 2016, (ii) cheque dated 14th January, 2017 and (iii) the said cheque were issued by the Defendant in favour of the Plaintiff. He submitted that it was the Plaintiff s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as security and were now being misused by the Plaintiff. 18. He then submitted that the Plaintiff was engaged in the business of money lending and therefore unconditional leave to defend the Suit must necessarily be granted to the Defendant. In support of his contention that the Plaintiff was in the business of money lending, he placed reliance upon the cross-examination of the Plaintiff conducted in the proceedings under Section 138 of the Negotiable Instruments Act, wherein, the Plaintiff had admitted in his cross-examination that he advanced monies in cash and had not disclosed the same to the authorities. Learned counsel further submitted that it was the Plaintiff s case that he had paid the sum of Rs. 1,50,00,000/- to the Defendant in cash, however, no proof whatsoever regarding this payment was produced by the Plaintiff. He thus submitted that this demonstrated that the Plaintiff was accustomed to dealing in high volumes of cash. He then pointed out that the volume of transactions undertaken by the Plaintiff and the Plaintiff s associates were evident from the letter dated 8th April, 2021. A plain reading whereof would make evident that the Plaintiff was involved in the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant since the Defendant has raised substantial defences and was likely to succeed at the trial of the Suit. In support of his contention, he placed reliance upon a judgment of the Hon ble Supreme Court in the case of BL Kashyap and Sons Vs. JMS Steels and Power Corp. and Anr. (2022) 3 SCC 294. Reasons and conclusion. 22. I have heard learned counsel, perused a copy of the pleadings as also considered the case law cited and find that in the facts of the present case, the Defendant is not entitled to unconditional leave to defend, for the following reasons, viz., i. At the outset, the Defendant has admitted to both, having executed the said cheque and handing over the same to the Plaintiff. There is not even a hint of a suggestion that the Defendant did not do so voluntarily or was forced and/or coerced into handing over the said cheques. Thus, even accepting the Defendant s contention that a blank cheque was handed over to the Plaintiff, it is well settled as has been held by the Hon ble Supreme Court in the case of Bir Singh vs Mukesh Kumar (2019) 4 SCC 197 that the presumption under section 139 of the Negotiable Instruments Act squarely applies . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is the Defendant s contention that the fact that since the present Suit has been filed under the provisions of the Commercial Courts Act, the Plaintiff is a financier. The present Suit is filed based on a dishonoured cheque and is not for a recovery of a loan. The ratio in the judgments in the case of Parikh Aluminex Limited (supra) and Mour Marbles Industries Private Limited thus squarely apply. Therefore, the Defendant s contention that the Plaintiff is a financier as defined under Section 2(c)(i) of the Commercial Courts Act and thus is deemed to be a money lender is entirely untenable. 23. Given the above, I find that the Defendant having voluntarily handed over the said cheque duly signed, even assuming the same was blank would necessarily be liable in respect thereof. There is no doubt that the practice of handing over blank cheques is one which is attended with risks. As already observed above, the law is well settled that the presumption under Section 139 of the Negotiable Instruments Act would apply. Therefore, when a person voluntarily hands over a blank cheque he therefore accepts the risks of the consequences that may follow in doing so. The handing over of a bla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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