Back
IN THE HIGH COURT OF JAMMU AND KASHMIR
RASHID ALI DAR, J.
Mushtaq Ahmad Challoo – Appellant
Versus
Mohammad Ayoub Challoo – Respondent
Cri. No. 10 of 2019
Decided On : 19-02-2019
Constitution of India, 1950 - Article 227 - Civil Procedure Code, 1908 - Rule 3 - Order 37 – Supervisory jurisdiction in terms - Condition of payment - Conditional leave has been granted in favour of petitioner herein by trial Court on an application filed under Order Rule sub-rule of CPC - Trial Court had found ground put forth for grant of leave to be illusory and sham and accordingly petitioner has been directed to deposit an amount in Court or in alternative deposit cash security - A review petition was filed before said Court which has been dismissed in terms of order while opining no ground had been made out for same - Approach of Court is stated being not covered by law and virtually according to petitioner defendant has been incapacitated to contest suit - For this jurisdiction Section and in the alternative Constitution of Jammu and Kashmir is invoked – Held Lordships in case AIR also felt that at times it is difficult to assess whether defence put forth is substantial one - Grant or refusal of leave or grant of conditional leave is to be left to discretion of trial Judge who is expected to have attained proper skill and same having stood sharpened by practical experience over years as a Judge or may be even at bar - Want of bona-fides has generally impelled Court to withhold its assistance to grant leave - In instant case too same appears to have been guiding principle in declining unconditional leave - Plea about supply of motor parts taken by respondent-plaintiff in suit is clearly denied by petitioner herein - Circumstances in which according to him cheque has come in hands of respondent have been noted above - It is noted herein supra that Court in which according to the petitioner herein report of inquiry was submitted by the police has not taken any cognizance in matter but has consigned complaint to records as stated above - Magistrate if on receipt of report of inquiry would have taken cognizance on it or otherwise opined that there was prima facie force in the allegations levelled about the cheating fraud forgery etc same would have strengthened case of petitioner herein for grant of leave to defend case unconditionally - Defence so put forth could be thus not only treated plausible but also probable - It could tilt balance in favour of petitioner and case for interference could be opined to have been made out - Lordships of Honble Apex Court in Singh and Another and Another have referred to observations made by Harries that power vested with the High Court in terms of Article of Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep subordinate courts within bounds of their authority and not for correcting mere errors – Petition dismissed
1. Conditional leave has been granted on 07.09.2017, in favour of the petitioner herein by the learned trial Court on an application filed under Order 37, Rule (3), sub-rule (5) of CPC. The learned trial Court had found the ground put forth for grant of leave to be illusory and sham and accordingly the petitioner has been directed to deposit an amount of Rs. 6,20,000/- in the Court or in the alternative deposit cash security.
2. A review petition was filed before said Court which has been dismissed in terms of order dated 23.01.2019, while opining no ground had been made out for the same. The approach of the learned Court is stated being not covered by the law and virtually according to the petitioner the defendant has been incapacitated to contest the suit. For this, Revisory jurisdiction under Section 115, C.P.C. and in the alternative Section 104, Constitution of Jammu and Kashmir is invoked.
3. A copy of the plaint has been brought on record by the learned counsel when he was being heard. It indicates a suit has been filed for an amount of Rs. 6,20,000/- by the respondent before trial Court on the count that:
(i) The plaintiff is a Managing partner of the Firm Northern Motor Corporation dealing in supply of motor parts and accessories.
(ii) That the defendant approached the plaintiff for the supply of motor parts and accessories worth Rs. 6,20,000/- (Rupees six lacs and twenty thousands).
(iii) That on 07.07.2015, the defendant issued a payees account cheque bearing No. 680724, SB Account No. 45943 for an amount of Rs. 6,20,000/- (Rupees six lacs and twenty thousands) payable from J&K Bank Branch Safa Kadal, Srinagar.
(iv) The plaintiff thereafter presented the said cheque bearing No. 680724 amounting to Rs. 6,20,000/- (Rupees six lacs and twenty thousands) to J&K Bank Branch, Safa Kadal, Srinagar on 17.08.2015, but the cheque was dishonored for the reason of insufficient funds.
(v) That the plaintiff requested the defendant to make the payment, but did not pay any heed and even on 25.08.2015, served a legal notice requesting the defendant to make the payment of Rs. 6,20,000/- to the plaintiff within fifteen days from the receipt of the said notice, but without any result and in turn resorted to police action against the fact and law.
4. The version put forth by the petitioner herein for grant of leave in the application which has been allowed by the trial Court with the condition referred above is:
(i) That cheque was obtained by fraud from the plaintiff.
(ii) That defendant was working as Salesman cum partner in the Firm M/s. Asian Car Choice for the last ten years and during his tenure as Salesman/partner an account, was opened by the Principal Partner Noor Mohammad Challoo with J&K Bank Ltd. Branch, Safa Kadal, in the name of defendant, but the defendant had entrusted the cheque book to one Noor Mohammad who was maintaining the accounts of the firm.
(iii) Sometime back the defendant has retired from the Firm, however, before his retirement all the accounts were settled and he paid an amount of Rs. 4,53,000/- to the Noor Mohammad against proper receipt, but the said Nooor Mohammad has taken undue advantage of the trust and confidence which the defendant had reposed in him and fraudulently has retained one cheque leaf from the cheque book and issued the said cheque in the name of his son, i.e., plaintiff Mohammad Ayoub Challoo for an amount of Rs. 6,20,000/-.
(iv) The defendant has not received any supplies from the Firm. The plaintiff has tried to encash the cheque by fraudulent means and when defendant came to know about the fraud perpetuated by plaintiff and Noor Mohammad, he lodged a complaint with the police station concerned and the police after investigating the matter have found that the cheque has been obtained by fraudulent means and action has been taken against the plaintiff and the said Noor Mohammad.
5. It is required to be noted that before filing the suit a notice had been issued as is referred in the plaint. A
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
