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BOMBAY HIGH COURT
R.D. Dhanuka, J.
Ashapura Aluminum Limited —Petitioner
versus
Mr. Jayesh Nagindas Doshi & Ors. —Respondents
Summons for Judgment No. 185 of 2010 in Summary Suit No. 1958 of 2010
Decided on 23.8.2012
IMPORTANT POINT
Initial onus of proof that cheque issued by Defendant was without consideration is on Defendant.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Presumption of debt—Rebuttal of presumption—Initial onus of proof that cheque issued by Defendant was without consideration was on Defendant—If 1st Defendant would have discharged initial onus of proof showing that existence of consideration was improbable or doubtful or same was illegal, onus would have been shifted to Plaintiff who would have been oblige to prove it—Defendant has failed to prove non-existence of consideration by bringing on record preponderance of probabilities by reference to circumstances upon which he relied upon—No triable issue is raised by Defendant—Plea raised by Defendant is not substantial and is moon shine—No appearance has been filed by them and in view of the Order XXXVII Rule 2 Sub Rule 3, CPC, allegations made in plaint by Plaintiff shall be deemed to be admitted and Plaintiff is entitled to reliefs claimed in Summons for Judgment together with interest at rate specified. (Paras 12 to 14)
R.D. Dhanuka, J.—By this Summons for Judgment, the Plaintiff seeks judgment be entered for the Plaintiff in this suit against the Defendant for a sum of Rs. 81,33,260.90. The suit is based on the dishonoured cheque, guarantee, written correspondence between the parties and on the basis of the written contract.
2. The 1st Plaintiff is one of the group of companies of the Plaintiff No. 2. The 1st Defendant was appointed as a ‘Group-Chief Financial Officer’ Kvm 2 SJ485_10 of the Plaintiff No.2 by its appointment letter dated 16th June, 2008 and was authorised and required to work for any of the associates or group of companies or the holding company of the Plaintiff and was conferred with the full/wide powers to carry out any and all financial decisions in respect of day-to-day affairs and to take important financial decisions on behalf of the Plaintiff independently.
3. The 1st Defendant was also appointed as Executive Director of the Plaintiff. According to the Plaintiff, Defendant No.1 introduced the 2nd Defendant to the Plaintiff so as to arrange financial loan of Rs.2,700 crores for the company’s project at Kutch in the State of Gujarat. Defendant No.2 represented to the Plaintiff that on behalf of his company and its foreign investment company ‘Plan Insure Ltd.’, the Plaintiff was required to arrange for the funds for remittances to be made on behalf of the 2nd Defendant’s company M/s.Aajay Consultants to facilitate issuance of Bank Guarantee from HSBC Bank, London for raising a fund in the sum of Rs.2,700 crores. M/s.Plan Insure Ltd. raised invoice on 6th October, 2009 demanding Euro 1,10,000 as advance payment towards insurance. According to the Plaintiff, the 1st Defendant without any authority and without consulting the Plaintiff, addressed a letter to the Chief Manager of ‘Yes Bank’, Fort Branch interalia instructing therein for outward remittance of Euro 1,10,000 towards advance insurance payment and for crediting to Kvm 3 SJ485_10 ‘Plan Insure Ltd.’. Accordingly the said amount was wire transferred by the bankers of the Plaintiff towards advance payment of insurance in the account name of ‘Montreal Elegance Pte. Ltd.’.
4. The 2nd Defendant by letter dated 20th October, 2009 to the 1st Plaintiff informed that the proposal for loan of Rs.2,700.00 crores of the Plaintiff was sanctioned for setting up of alumina refinery and requested to pay syndication fees of 7.5% of the loan amount on pro-rata basis of the receipt of the reimbursement into the bank account. The 1st Defendant by its letter dated 20th October, 2009 issued cheque dated 23rd October, 2009 for the sum of Rs.35 crores in favour of the 1st Plaintiff by way of the release of first installment of loan. On deposit of the said cheque of Rs.35 crores by the Plaintiff, the same was bounced on 24th October, 2009 with the remark ‘Account Closed’.
5. The Second Defendant issued a cheque for Rs.85 lacs in favour of the 1st Plaintiff so as to cover up and protect the said amount already spent by the Plaintiff as well as other expenses incurred. On deposit of the said cheque, the same was dishonoured on the ground of insufficient fund on 26th October, 2009.
6. According to the Plaintiff, the 1st Defendant who was responsible and representative of the Plaintiff company and jointly represented the Kvm 4 SJ485_10 Defendant addressed a letter dated 25th November, 2009 to the Plaintiff admitting that payment of Euro 1,10,000, equivalent to Rs.70 lacs was paid to M/s. International Invest & Trade Management Services Limited based on his authority. He admitted that he was personally responsible for the same and takes full authority. The 1st Defendant informed that he was leaving the organization and it would be improper for him not to settle the dues and leave. The 1st Defendant informed that out of Rs.70 lacs, the 1st Defendant was entitled to receive a sum of Rs.14,50,000/- from the Plaintiff as his dues. The 1st Defendant issued a cheque of Rs.50 lacs in favour of the 2n
