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DELHI HIGH COURT
Vipin Sanghi, J.
K-7 Impex Pvt. Ltd. —Plaintiff
versus
Shailendra Garg —Defendant
CS(OS) 1866 of 2013
Decided on 16.2.2016
For the Plaintiff:Mr. Ravi Sikri, Senior Advocate along with Mr. Deepank Yadav, Advocate
For the Defendant:Mr. Amit Agrawal & Ms. Tejaswita, Advocates
IMPORTANT POINT
Leave to defend cannot be granted where defence disclosed by defendant does not indicate that he has a fair or a bonafide or a reasonable defence.
Headnote:Civil Procedure Code, 1908—Order 37 Rule 3—Money suit—Recovery of due amount—Proceedings under Section 138 of Negotiable Instruments Act, 1881 in respect of the said six cheques, which are still pending—Defendant has also not explained as to why a buyer would pay a large amount as consideration in advance without even entering into a contract for supply of goods—Defence disclosed by defendant is riddled with serious contradictions and does not inspire confidence—It cannot be said that defendant either has a good defence, or that he has raised any triable issue—Defence disclosed by defendant does not indicate that he has a fair or a bonafide or a reasonable defence—No merit in present application seeking leave to defend—Defendant is not entitled to even conditional leave to defend in facts and circumstances of case—Application dismissed and suit decreed. (Paras 28, 30, 36, 37 and 38)
Result: Suit decreed. Application seeking leave to defend dismissed.
I.A. No. 14316/2014 (under Order XXXVII Rule 3 CPC)
Vipin Sanghi, J.—The aforesaid application has been filed by the defendant to seek unconditional leave to defend the present summary suit filed by the plaintiff under the provisions of Order XXXVII CPC.
2. The case of the plaintiff is that the defendant Shailendra Garg was known to the plaintiff for a couple of years. He was in need of finances and approached the plaintiff in his personal capacity, seeking loan in the month of September 2012. After meetings with the defendant at the registered office of the plaintiff company, the plaintiff agreed to advance finance to the defendant as a loan, to be refunded by the defendant with interest thereon @ 36% per annum. The defendant executed promissory notes in favour of the plaintiff agreeing to repay the loan along with interest, on demand made by the plaintiff company. The plaintiff, in all, advanced an amount of Rs.2.20 Crores to the defendant as loan by six installments, the details whereof are stated as follows:
(i) On 05.10.2012, the Plaintiff Company gave an amount of Rs.50 lakh as loan to the Defendant/ Mr. Shailendra Garg from their Canara Bank Account vide cheque No.002261 paid against RTGS CNRBH 1227981.
(ii) On 18.10.2012, the Plaintiff Company gave an amount of Rs.50 lakh as loan to the Defendant/ Mr. Shailendra Garg from their Canara Bank Account vide cheque No.002276 paid against RTGS CNRBH 12292631.
(iii) On 05.11.2012, the Plaintiff Company gave an amount of Rs.60 lakh as loan to the Defendant/ Mr. Shailendra Garg from their Deutsche Bank Account vide cheque No.573782 paid against RTGS.
(iv) On 19.11.2012, the Plaintiff Company gave an amount of Rs.28 lakh as loan to the Defendant/ Mr. Shailendra Garg from their Canara Bank Account vide cheque No. 012112 paid against RTGS CNRBH 1325500.
(v) On 20.11.2012, the Plaintiff Company gave an amount of Rs.20 lakh as loan to the Defendant/ Mr. Shailendra Garg by cash.
(vi) On 30.04.2013, the Plaintiff Company gave an amount of Rs.12 lakh as loan to the Defendant/ Mr. Shailendra Garg by cash.
3. The defendant, upon receiving the loan amount in six installments acknowledged its receipt by executing receipts, signed by him. The defendant also executed cheques for the loan amount, which were handed over by the defendant in order to discharge his liability. The defendant repaid an amount of Rs.44.21 Lakhs to the plaintiff, which was adjusted towards refund of the principal amount. The said amount was adjusted towards the first installment of loan advanced to the defendant on 05.10.2012 of Rs.50 Lakhs.
4. The plaintiff further states that the plaintiff banked the cheques issued by the defendant on the due dates, which were dishonoured upon presentation for reasons such as drawer signatures differ; payment stopped by drawer; funds insufficient and; drawer signatures differ. Despite notice issued to the defendant for dishonour of the cheques, the amount was not paid. Consequently, the plaintiff has also initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) in respect of the said six cheques, which are still pending. After adjustment, the plaintiff claims that the principal amount outstanding is Rs.1,75,79,000/- together with interest thereon amounting to Rs.58,65,269/-.
5. In the defence disclosed by the defendant in the present application, the defendant does not dispute the factum of having received Rs.2.2 Crores from the plaintiff. The defence of the defendant is that the plaintiff advanced the monies towards purchase of goods and the goods were, in fact, supplied to the plaintiff. The cheques and promissory notes were issued only for security, rather than for any kind of repayment. The plaintiff did not advance any loan to the defendant, and the story set up by the plaintiff is false.
6. The defendant states that the plaintiff is engaged in the business of trading, exporting and distributing fabrics, textile items and carpet rugs
