Inconsistent and contradictory actions by the defendant can weaken the merit of their defense in a summary suit.

CM Nos. 8284/2015 (condonation of delay of 10 days in filing) & 8385/2015 (condonation of delay of 90 days in re-filing)

1. Learned counsel for the respondent says that he does not wish to oppose the captioned applications.

2. In view of the reasons set out in the applications, and having regard to the fact that there is no opposition to the same, the applications are allowed and the delay is condoned. The applications are, accordingly, disposed of.

RFA 309/2015

3. This is an appeal preferred against the judgment and decree dated 21.08.2014 passed by the trial court. By virtue of the impugned judgment, the trial court has rejected the appellants’ application for leave to defend, in a summary suit filed by the respondent/ plaintiff.

4. Briefly, the respondent/ plaintiff approached the trial court with the case that appellant no.2, who is the authorized signatory of appellant no.1 company, had approached him for a loan in the sum of Rs. 4 lacs. Loan was sought for a period of six months. The respondent/ plaintiff, however, it appears, loaned to appellant no.2 only a sum of Rs. 3.50 lacs, albeit, in January, 2011 with a promise that it would be returned by July, 2011.

4.1 Since, appellant no.2, failed to return the amount, the respondent/ plaintiff pursued the recovery; whereupon, with great difficulty, a cheque dated 15.09.2011, drawn on ICICI Bank, New Delhi, in the sum of Rs. 3.50 lacs, was furnished by him.

4.2 It was the stand of the respondent/ plaintiff before the trial court that appellant no.2 requested him not to present the cheque, immediately, on account of shortage of funds.

4.3 Since, appellant no.2 failed to refund the money, the respondent/ plaintiff, presented the cheque on 15.02.2012. The cheque was, however, dishonoured and returned with endorsement “insufficient funds”. It is averred by respondent/ plaintiff that this fact was brought to the notice of appellant no.2, who apologized and promised to repay the amount shortly. The respondent/ plaintiff avers that it is on account of this reason that no criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881, were initiated against appellant no.2.

4.4 The respondent/ plaintiff, however, got served a legal notice dated 30.04.2012, on appellant no.2.

4.5 It is, however, not disputed before me that the said legal notice was replied to by appellant no.2, and that, the reply is dated 28.05.2012.

4.6 The record though, reveals that, in the interregnum, appellant no.2 had filed two complaints with the police. The first complaint is dated 31.12.2011. This complaint was filed with Police Station (P.S.) Palam Village, Dawarka. The second complaint, which is, dated 28.05.2012, which was filed with P.S. R.K. Puram, New Delhi.

5. Learned counsel for the appellants, based on the complaints, and his defence that there was no name of the drawee inserted in the subject cheque, says, that there are triable issues which arise in the matter and, therefore, the trial court could not have decreed the suit by rejecting the appellants’ application for leave to defend.

5.1 Learned counsel for the appellants says that the appellants became aware of the fact that his own employee had stolen the cheque in issue, only when he received the legal notice dated 30.04.2012 issued by the respondent/ plaintiff.

6. Learned counsel for the respondent/ plaintiff, however, in support of his submissions largely relies upon the impugned judgment.

7. I have heard the learned counsels for the parties and perused the record. Quite clearly, the record shows that the following aspects, undeniably, emerge in the matter:

(i) The first complaint filed with the police, which is dated 31.12.2011, adverts to the fact that appellant no.2 lost his “purse” in Dwarka, Mangla Puri, Subzi Mandi, which, apparently, contained the driving license, cash in the sum of Rs. 20,000/-, and some papers, including the subject cheque.

(ii) The second complaint, which is dated 28.05.2012, however, takes a d