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TMI Blog2024 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... rom him. The denial of leave to defend is not the rule but an exception. However, leave to defend may not be granted where the defendant has practically no defence and is unable to give out even a semblance of triable issues. Where the defendant raises triable issues indicating a fair or bona fide or reasonable defence, albeit not a positively good defence, the defendant would still be ordinarily entitled to unconditional leave to defend. Where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or there is a doubt about the genuineness of the issues, the Court may impose conditions both as to time or mode of trial, as well as payment into the Court or furnishing of a security by the defendant. Where the defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of the payment into the Court or furnishing security or both - Where the defendant admits to a part of the claim of the plaintiff, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court. The only defence of the defendants is that the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and is accordingly disposed of. It is however, clarified that the disposal of this application shall not in any manner prejudice the rights of the plaintiff in the Suit. I.A.17444/2022 in CS(OS) 233/2022 5. This application has been filed by the defendant seeking condonation of delay in filing of the application under Order XXXVII Rule 3(5) of the CPC, being I.A. 17443/2022, seeking leave to defend the Suit. 6. For the reasons stated in the above application, and as the learned counsels for the parties have made detailed submissions on the merit of I.A. 17443/2022, the delay is condoned. The application is allowed. I.A. 16106/2022 in CS(OS) 232/2022 I.A. 17443/2022 in CS(OS) 233/2022 7. These Suit(s) have been filed by the plaintiff under Order XXXVII of the CPC, praying for recovery of Rs. 6,42,76,712.33 along with interest at the rate of 18% per annum [in CS(OS) 232/2022] and for recovery of Rs. 8,81,91,452/- along with interest at the rate of 18% per annum [in CS(OS) 233/2022] against the respective defendant(s). 8. As these two Suits and the defence of the respective defendants raise identical issues, the present applications, which have been filed by the respective defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff agreed to the defendants requests to not encash the cheques given by the defendants to the plaintiff towards the repayment of the loan amounts. 16. The plaintiff makes a claim regarding another transaction of an Agreement to Sell of the property bearing H.No. 10, Maulsari Avenue, Westend Greens, A F Rajkori, South West Delhi, New Delhi-110038, belonging to R.C. Nursery Private Limited, which he claims is controlled/managed by Mrs. Rajshree Singh, Mrs. Arundhati Khanna, and Mrs. Aditi Singh. The said transaction is not the subject matter of the present Suits and, therefore, is not discussed hereinafter. 17. The plaintiff asserts that on 24.12.2021, the plaintiff presented the cheque given by Mrs. Rajshree Singh for encashment, however, the same got dishonoured and was returned vide Return Memo dated 27.12.2021, with the remarks Insufficient Funds . The plaintiff, through his counsel, sent a Legal Notice dated 03.01.2022 under Section 138 of the Negotiable Instruments Act, 1881 (in short, NI Act ) to Mrs. Rajshree Singh, and also filed a complaint against her under Section 138 read with Section 142 of the NI Act, being CC No. 2657/2022 titled Amarendra Dhari Singh v. Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inuous and sustained extortion against Mrs. Aditi Singh. He submits that after brainwashing her into thinking that she was communicating with authorities in the government, the conman had established trust and extorted money from Mrs. Aditi Singh and her family members. He submits that the same has also been reported in a press release dated 30.04.2022, issued by the Enforcement Directorate (in short, ED ). He submits that an FIR No. 208/2021 dated 07.08.2021 was also registered with the Special Cell, Delhi Police on the complaint filed by Mrs. Aditi Singh against such protracted extortion. Investigation in the FIR is being undertaken by the Economic Offences Wing, New Delhi (in short, EOW ). The ED is also investigating offences under the Prevention of Money Laundering Act, 2002 (in short, PMLA ). He submits that based on the FIR, the ED has already registered a case under the PMLA, and the EOW has also registered a chargesheet before the learned Special Judge. 23. The learned counsel for the defendants submits that in order to meet the unconscionable and exorbitant demands of the conman, Mrs. Aditi Singh had to liquidate every available asset and had to arrange money on an urgent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the plaintiff has concocted the letter dated 13.08.2020 to claim that the amount given by him to Mrs. Rajshree Singh was repayable on his demand. Similarly, a letter dated 29.08.2020 has also been concocted by him for the same purpose against Mrs. Arundhati Khanna. He submits that no documents evidencing the terms of repayment, such as the rate of interest or period of repayment, were discussed/agreed upon or reduced to writing. He submits that the defendants have never acknowledged, explicitly or implicitly, any obligations to repay the money on demand. 27. He further submits that in the WhatsApp messages exchanged between the parties, the plaintiff has asserted that the repayment had to begin from December 2020, however, it is the own case of the plaintiff that an amount of Rs.66.70 crores was extended to Mrs. Aditi Singh even in 2021. He submits that this clearly shows that the case set-up by the plaintiff that the amounts given to the defendants were repayable on demand, is false. 28. He submits that the message dated 20.10.2020 from the plaintiff, wherein he stated that he would provide his bank account details only when the amount to be repaid is available with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be repayable to the plaintiff. At one place, they state that it was a short term financial aid, while at another, they state that it was to be repaid when Dr. Shivinder Mohan Singh is released from prison, while in the letter dated 01.11.2021, Mrs. Arundhati Khanna states that she herself had suggested that she would return the money in three years time. He submits that Dr. Shivinder Mohan Singh was released from prison more than one and a half years back, and the three years period, as pleaded by Mrs. Arundhati Khanna, has also long expired. He submits that therefore, it is not a case where the defendants deserve the grant of leave to defend. 34. He submits that as far as the plea regarding the conman and the alleged extortion is concerned, the defendants in their applications admit that this fact was not told to the plaintiff when they had come to the plaintiff to avail of the so-called financial help. The plaintiff, therefore, is not concerned with the same and his claim cannot be connected with the other litigations/complaints that have been filed in relation to the alleged transactions of Mrs. Aditi Singh with the said conman. 35. Placing reliance on the judgment of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the defendant satisfies the Court that he has substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bona fide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the Trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the Trial Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, where the proposed defence appear to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the defendant raises triable issues indicating a fair or bona fide or reasonable defence, albeit not a positively good defence, the defendant would still be ordinarily entitled to unconditional leave to defend. Where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or there is a doubt about the genuineness of the issues, the Court may impose conditions both as to time or mode of trial, as well as payment into the Court or furnishing of a security by the defendant. Where the defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of the payment into the Court or furnishing security or both. It is only in the case where the defendant is found to have no substantial defence and/or no genuine triable issues raised or where the Court finds the defence to be frivolous or vexatious, that the leave to defend is to be refused and the plaintiff is held entitled to a judgment forthwith. Where the defendant admits to a part of the claim of the plaintiff, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree years. When the loan is made. 47. A suit for the money lent can, therefore, only be filed within three years from the date the loan is made. Similarly, if the lender has given a cheque for the money, the suit can be filed within three years from the date the cheque is paid. The provision does not provide for a default option for the defendant/borrower to decide when he will pay or be able to refund the said amount to the lender. Therefore, unless there is a contract to the contrary, which may even be oral, the amount is repayable upon the lender s demand. 48. In addition to the above, it is also admitted that the defendants had handed over cheques to the plaintiff for the repayment of the amount taken by them from the plaintiff. It is claimed that these cheques were undated. The defence put up by the defendants is that by inserting a date on these cheques, the plaintiff has in fact carried out a material alteration in the same, and in terms of Section 87 of NI Act, the said cheques are rendered void. 49. I do not find any merit in this defence of the defendants as well. 50. Section 87 of the NI Act reads as under : 87. Effect of material alteration. Any material alteration of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course. 19. The above provisions have to be read together with Section 118 NI Act which sets out various presumptions as to negotiable instruments. The presumption is of consideration, as to date, as to time of acceptance, as to transfer, as to endorsement, as to stamp. The only exception to this is provided in proviso to Section 118 which reads as under: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 20. A collective reading of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of fiduciary relationship between the payee of the cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 53. It has, therefore, been held that by handing over a cheque, though signed but without a date, the drawer of the cheque is in fact giving an authority to the holder thereof to insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not support the case of the defendants in the facts of the present case. 58. In the present case, as is noted hereinabove, the liability to repay is admitted by the defendants. It is also admitted that they had given the cheques under their own signatures with the amounts filled in to the plaintiff, and the plaintiff has merely inserted a date on the said cheques. The said Judgment, therefore, cannot come to the aid of the defendants. 59. In view of the above, I find that the defence raised by the defendants is completely moonshine, frivolous and vexatious and, in fact, the defendants have admitted to their liability owed to the plaintiff. 60. Accordingly, the applications are hereby dismissed. CS(OS) 232/2022 CS(OS) 233/2022 61. The learned senior counsel for the plaintiff, during the course of his submissions had given up the claim of the plaintiff that the loan/amount given by the plaintiff to the defendants was to carry interest @18% per annum. 62. In view of the aforesaid discussion, CS(OS) 232/2022 is decreed in favour of the plaintiff and against the defendant in the said Suit, directing the defendant to pay an amount of Rs. 6,42,76,712.33/- to the plaintiff. The plaintiff i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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