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1982 Supreme(Raj) 21
High Court Of Rajasthan
Judgename : S.K.Mal Lodha
DAL CHAND - Appellant
Versus
SATISH CHANDRA - Respondent
Civil Revn. 29 Of 1977
Decided On : 02/01/1982
D.S.Shishodia, R.L.Maheshwari
In a suit based on a negotiable instrument, the plea of benami transaction is not recognized under the Negotiable Instruments Act, and inconsistent defenses that would prejudice a fair trial may be struck out under Order VI, Rule 16, C. P. C.
Headnote:
ORDER VI, RULE 16, C. P. C. - STRIKING OUT PLEADINGS - SECTION 82 OF THE NEGOTIABLE INSTRUMENTS ACT - BENAMI TRANSACTIONS - INCONSISTENT DEFENSES - EMBARRASSING PLEADINGS - COURT'S DISCRETION - SUMMARY DISMISSAL OF REVISION PETITION.
Fact of the Case:
In a suit based on a promissory note, the defendant denied execution and raised a plea of benami transaction in the written statement. The plaintiff applied to strike out these pleas under Order VI, Rule 16, C. P. C., arguing that they were embarrassing and would delay the trial.
Finding of the Court:
The court allowed the plaintiff's application, holding that the plea of benami transaction was not recognized under the Negotiable Instruments Act and that the defendant's inconsistent defenses were embarrassing and would prejudice a fair trial.
Issues: 1. Whether the plea of benami transaction can be raised in a suit based on a negotiable instrument? 2. Whether the defendant's inconsistent defenses were embarrassing and would prejudice a fair trial?
Ratio Decidendi: 1. The court held that benami transactions are not recognized under the Negotiable Instruments Act, and therefore the defendant could not raise this plea in defense of the suit. 2. The court found that the defendant's defenses were inconsistent and contradictory, and that allowing both defenses would prejudice a fair trial by requiring the defendant to present contradictory evidence.
Final Decision: The court dismissed the defendant's revision petition, upholding the trial court's order striking out the defendant's pleas of benami transaction and inconsistent defenses.
S. K. MAL LODHA, J.
( 1 ) THIS is a defendants revision against the order dated Jan. 15, 1977 of the Civil Judge, Udaipur, by which the learned Civil Judge has ordered for striking out para 3 and para 2 of the additional pleas of the written statement It may be stated that the learned Civil Judge dismissed the plaintiff-non-petitioners application under Order VIII, Rule 9, C. P. C. and allowed the application under Order VI, Rule 16. C. P. C. The plaintiff has not challenged the order dismissing his application under Order VIII, Rule 9, C. P. C. The defendant has challenged that part of the order dated Jan. 15, 1977, by which the application of the plaintiff under Order VI, Rule 16, C. P. C. was allowed.
( 2 ) THE plaintiff-non-petitioner instituted a suit for Rs. 6,000/- against the defendant-petitioner on the basis of a promissory note dated Mar. 13. 1963. The defendant contested the suit denying the execution of the pronote after borrowing Rs. 3,000/ -. In para 3 of the written statement, the defendant raised a plea that the plaintiff is be-namidar and that his (plaintiffs) father Madanlai used to do money lending business in the name of the members of his family. It was also stated in para 3 that as the plaintiff was benamidar and as he had not taken the money lending licence, he cannot institute the suit. In para 2 of the additional pleas, it was stated that defendant had several money dealings with the plaintiffs father and that by a registered letter. which was sent to him (plaintiffs father) on Jan. 2, 1974, he asked for the accounts of the past dealings, to which he did not reply. It was also averred in para 2 of the additional pleas that neither any amount by way of principal or interest is due from him nor from any member of his family. On behalf of the plaintiff, an application under Order VI, Rule 16, C. P. C. was filed on Aug. 7, 1976 for striking out para 3 and para 2 of the additional pleas of the written statement. This application was resisted on behalf of the defendant by filing a reply dated Sept. 4, 1976. The learned Civil Judge, by the impugned order, allowed the application under Order VI, Rule 16, C, P. C. filed by the plaintiff and ordered that para 3 and para 2 of the additional pleas of the written statement may be struck out on the ground that incorporation of para 3 and para 2 of the additional pleas of the written statement will prejudice, embarrass and delay the trial of the suit. To quote the learned Civil Judge : (Matter being in Hindi omitted.-- Ed.) The defendant has filed this revision questioning the order dated Jan. 15, 1977 of the learned Civil Judge, by which he allowed the plaintiffs application under Order VI. Rule 16, C. P. C. as aforesaid.
( 3 ) I have heard Mr. D. S. Shishodia, learned counsel for the petitioner and Mr. Rule L. Maheshwari for the non-petitioner and have carefully perused the plaint and the written statement.
( 4 ) THE contention of the learned counsel for the petitioner is that the learned Civil Judge has exercised his jurisdiction illegally or at any rate with material irregularity when he ordered for deletion of para 3 and para 2 of the additional pleas of the written statement, for, conditions under Order VI, Rule 16, C. P. C. are not satisfied. He submitted that the sum and substance of the pleas raised in para 3 and para 2 of the additional pleas is that the suit is not maintainable for want of money lending licence and that the defendant is not liable for the suit money for the reasons mentioned therein. Reliance was placed on Raghu Nath v. Radha Kishan, AIR 1929 Lah 634 and Bhagirath v. Gulab Kanwar, AIR 1956 Raj 174.
( 5 ) MR. Rule L. Maheshwari, learned counsel for the non-petitioner supported the order of the learned Civil Judge allowing the application under Order VI, Rule 16. C. P. C. He referred to the provisions of Sec. 82 of the Negotiable Instruments Act (No. XXVI of 1881) (for short, the Act); Sivagurnatha v. Padmavathi, AIR 1941 Mad 41
