PRADEEP NANDRAJOG, J.

Caveat No.624/2015

Counsel as above appears for the respondent/caveator and thus the caveat is discharged.

CM No.11220/2015

Allowed subject to just exceptions. RFA

(OS) No.60/2015

1. Though the appeal is listed for preliminary hearing today, since counsel appears for the respondent on advance copy of the appeal being supplied because of the caveat filed, we have heard learned counsel for the parties at length and while doing so have considered the original record of CS (OS) No.2254/2013 which has been sent to Court along with the appeal in view of the practice directions issued that whenever Regular First Appeals laying a challenge to a decree passed by a learned Single Judge of this Court are listed before the Division Bench the record of the suit should be sent to Court.

2. The appellant was the defendant. The respondent was the plaintiff. Suit filed by the respondent under Order XXXVII of the Code of Civil Procedure has been decreed by the learned Single Judge vide impugned judgment/order/decree dated April 27, 2015 as a consequence of IA No.10525/2014 filed by the appellant under Order XXXVII Rule 3(5) of the Code of Civil Procedure praying for leave to defend to be granted being dismissed.

3. The suit filed by the respondent was founded on a written acknowledgement dated January 21, 2011 with two cheques as collateral security. The written acknowledgement duly signed by the appellant reads :

‘Received with thanks from Mrs. Maya Jain W/o Sh.Parmod Jain, R/o E-16A, East of Kailash, New Delhi a sum of Rs.45,00,000/-(Rupees Forty Five Lacs only) as loan against cheque No.690845 for Rs.22,00,000/-(Rupees Twenty Two Lacs only) & Cheque No.690846 for Rs.23,00,000/-(Rupees Twenty Three Lacs only) drawn on Corporation Bank, Noida as security”. As per the plaint the appellant did not return the loan.

4. Seeking leave to defend the appellant admitted having executed the written acknowledgement dated January 21, 2011 and the contents thereof but pleaded that the receipt was obtained by fraud and misrepresentation. Being relevant for the purposes of the decision in the appeal we reproduce the pleadings concerning the plea of fraud and misrepresentation. The same read as under:-

“The Plaintiff has relied on a receipt dated 20.01.2011 regarding an alleged money transaction. However, the Defendant has failed to disclose that the said receipt was obtained by fraud and misrepresentation. The husband of the Plaintiff approached the Defendant and insisted that he was interested in obtaining returns by making investment in the business of the Defendant. After pursuing the Defendant for months and trying to persuade him, he proposed to give Rs.45 lakhs to the Defendant”s company on account of his extra income with the intention of obtaining returns on the said amount. He stated that this amount would be transferred through RTGS/NEFT from the account of the Plaintiff. However, the husband of the Plaintiff insisted that before the sum is transferred, the Defendant should issue cheques for security and pressurised the Defendant into issuing the same. The husband of the Plaintiff never made the payment with respect to the sum mentioned. The Plaintiff has failed to show by way of bank statements/RTGS or NEFT receipt that the sum of Rs.45 lakh was paid by her to the Defendant. The receipt was thus obtained by fraudulently inducing the Defendant to believe that a sum of Rs.45,00,000/-would be given to him towards his business, for which he even gave security by way of cheques.”

5. Territorial jurisdiction of this Court was challenged on the plea that

6. In the plaint the cause of action has been pleaded with reference to the the appellant resides in Noida. fact that the money was paid to the appellant at Delhi and so was the receipt executed.

7. Considering the plea of territorial jurisdiction the learned Single Judge has held thatthe principle of :

‘the debtor has to find the creditor’ was sufficient to confer territori