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DELHI HIGH COURT
G.S. Sistani, J.
Anil Tyagi —Petitioner
versus
S.D. Infosys & Ors. —Respondents
CS(OS) 1062 of 2011
Decided on 15.4.2014
For the Petitioner/Plaintiff:Ms. Rachna Agrawal and Ms. Surbhi Sharma, Advocates
For the Respondents/Defendants No.1 to 4:Ms. Charu Dalal, Advocate
IMPORTANT POINT
For the purpose of seeking leave to defend recovery suit, the defendant is to make out a triable issue and raise a bonafide defence. Sham and Moon Shine plea cannot be accepted.
Headnote:Civil Procedure Code, 1908, Order 37, Rule 3 (5)—Leave to defend recovery suit— Contention that the plaintiff took advantage of financial condition of the defendant, but no document placed on record to support the said plea—While granting leave to defend the Court must consider as to whether the defendant raised triable issue or a bonafide defence—Plea of the defendant not accepted and leave to defend denied. (Paras 10, 11, 15 & 16)
Facts of the case:
According to the plaint the plaintiff and defendant no. 1 used to purchase computers from each other and issue post-dated cheques. The plaintiff filed suit for recovery of Rs. 1.00 Crore and produced on record the original cheques, 23 invoices issued by defendants no. 2 to 4. The defendants sought leave to defend on the ground that the plaintiff was taking undue advantage of his financial condition. There was only oral denial not supported by any corroborated evidence from the side of the petitioner/defendant.
Findings of the Court:
Order XXXVII CPC has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. The Courts have consistently held that if the affidavit filed by the defendant discloses a triable issue that is at least plausible, leave should be granted, but when the defence raised appears to be moonshine and sham, unconditional leave to defend cannot be granted. What is required to be examined of grant of leave is whether the defence taken in the application under Order 37 Rule 3 CPC makes out a case, which if established, would be a plausible defence in a regular suit. In matters relating to dishonour of cheques, the aforesaid principle becomes more relevant as the cheques are issued normally for liquidation of dues which are admitted. In the instant case, the defence would have been plausible had it not been for the fact that the allegations relating to the interpolation of the cheque is without substance and the ledger accounts relating to the dues, clearly demonstrated that such dues had been settled between the parties. Therefore, no triable issue was made out in favour of the defendant and the High Court rightly rejected the application of the petitioner.
Result: Petition dismissed.
G.S. Sistani, J.—Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1980, for recovery of Rs.1,00,00,000/- (Rupees One Crore).
2. I.A. 1085/2014 has been filed by defendant no.2 and IA 1086/2014 has been filed by defendants no. 1, 3 and 4 under Order XXXVII Rule 3 (5) CPC seeking leave to defend.
3. The necessary facts, to be noticed which have led to the filing of the present suit and as stated in the plaint, are that the plaintiff is stated to be carrying on the business in the name and style of M/s Binary Computers Systems and is dealing in Computer Hardware and Software of various brands including Hewlett-Packard, Lenovo and Microsoft. Defendant no.1 is a partnership firm and defendants no.2 to 4 are its partners. Defendant no.5 is the manufacturer of computers and laptops and defendant no.1 was the registered distributor of defendant no.5.
4. As per the plaint, the plaintiff and defendant no.1 used to purchase computers from each other based on their requirement and issue post-dated cheques once the goods were delivered. Between December, 2010 and February, 2011 defendant no.1 had placed purchase orders with plaintiff and subsequently issued cheques to the plaintiff for the value of goods so purchased. The plaintiff has filed on record copies of 23 invoices issued by defendants no.2 to 4 duly signed by the representatives of the defendants. The plaintiff has also placed on record the original cheques, which were handed over by defendants no.2 to 4 to the plaintiff alongwith the corresponding original Return memos issued by HDFC Bank to the plaintiff. The plaintiff has also placed on record the communication dated 17.3.2011 by defendant no.2, which is stated to be in the handwriting of Mr. Manish Chawla, defendant no.2, and also an undated communication issued by defendant no.2 to H.P. India (P) Ltd., 6th Floor, Global Business Park, ‘D’ Tower, Gurgaon, whereby defendant no.2 has authorised the plaintiff to collect all pending claims/cheques on behalf of defendant no.2.
5. Communication dated 17.3.2011 issued by defendant No.2 reads as under:
“Dear Anil Ji
Thanks for all the things that you have done for me. I never find such kind of nice person in my whole life. I have to owe you the money but after my all efforts I am not successful so I find the easiest way due to Ajay Chug. Pls take care of my relative and friends after me so that nobody can hassle them. For your money kindly take it from HP. Over their you have to contact Mr.Arun Sood 9811148584, Suraj Dixit 09871097999 and Sunil Dutt 9810053115. I am enclosing the Authorization Letter and few cheques of S.D. Infosys. I told you that I will never cheat you. Your friend Sd/- Manish Chawla 17.3.2011”
6. The undated communication also placed on record reads as under:
“To, HP India (P) Ltd. 6th Floor Global Business Park “D” Tower Gurgaon. I (Manish Chawla) authorizing Mr.Anil Tyagi (Binary Computers Systems : Laxmi Nagar) to collect my all pending claims cheques of HP on my behalf. Thanks & Regds Sd/- & Seal Manish Chawla”
7. Learned counsel for the plaintiff submits that the present suit is based on invoices and dishonour of the cheques issued by defendants no.2 to 4 in favour of the plaintiff. Counsel has placed reliance on a judgment rendered by this Court in the case of M/s Harkaran Dass Deep Chand vs. Viren Agrotech Pvt. Ltd., CS (OS) 2377/2010. wherein this Court has recognised invoices to be a written contract.
8. Reliance is also placed by counsel for the plaintiff on the dishonoured cheques to show that the present suit is maintainable under the provisions of Order XXXVII of CPC.
9. Counsel for the plaintiff also relies on G.P. Bhatia vs. Dee Kay Inc. & Ors., 188 (2012) DLT 721 wherein reliance has in turn been placed on the case of
M/s.Sunil Enterprises vs. SBI, AIR 1998 SC 237: 1998(4) Supreme 324 wherein the Apex Court has drawn up the parameters to be considered by the court while deali
