$~49(Appellate)

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) 1528/2019 M/S DWARKESH DIAMONDS PVT LTD ..... Petitioner Through: Mr.Mohit Monga, Adv.

versus URMIL BAKSHI ..... Respondent Through: Mr.Sanjay Kumar Bhasin and Mr.Pardeep Kumar, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT (ORAL)

% 19.10.2022

1. These proceedings arise from CS DJ 159/2017 instituted by the petitioner M/s Dwarakesh Diamonds Pvt. Ltd against the respondent Urmil Bakshi under Order XXXVII of the Code of Civil Procedure, 1908 (CPC).

2. The petitioner in the suit sought decree against the respondent for an amount of ₹ 23,46,000/- with pendente lite and future interest. The plaintiff averred that the petitioner was engaged in the business of purchase and sale of gold and diamond jewellery ornaments and that, in the course of said business, the petitioner sold jewellery to the respondent under bills/invoice no. 27 dated 25^th November 2014 for ₹ 17,01,921/-. Copy of the said invoice was filed with the plaint.

CM(M) 1528/2019 Page 1 of 15 Signature Not Verified Digitally Signed

3. The plaint further averred that on the request of respondent, discount of ₹ 1,921/- was granted to the respondent so that the payable amount was ₹ 17,00,000/-.

4. Accordingly, three days after the invoice was issued, the respondent handed over, to the petitioner, a cheque bearing no. 071941 dated 28^th November 2014 drawn on Punjab National Bank, Tilak Nagar, for ₹ 7 lakhs and cheques bearing no. 763118 and 763119, both dated 28^th November 2014 drawn on United Bank of India, Fatehnagar Branch, for ₹ 5 lakhs each. On presentation, it is alleged in then plaint that the said cheques got dishonoured on the ground of „insufficiency of funds‟.

5. The petitioner, therefore, issued a legal notice dated 23^rd December 2014 to the respondent and, when the respondent failed to make payment of said amount, instituted criminal proceedings against the respondent under Section 138 of the Negotiable Instruments Act, 1881.

6. The petitioner approached the learned Trial Court, invoking its jurisdiction under Order XXXVII of the CPC The petitioner claimed, in the suit, a total amount of ₹ 23,46,000/-, of which ₹ 6,46,000/- constitutes the interest @ 18% p.a. from 25^th November 2014 i.e., the date of cheque till the 5^th January 2017.

7. Consequent to issuance of summons in the suit, the respondent CM(M) 1528/2019 Page 2 of 15 Signature Not Verified Digitally Signed filed an application under Order XXXVII Rule 3(5), [3. Procedure for the appearance of defendant. –] of the CPC, seeking leave to defend the suit.

8. The respondent, in her application for leave to defend, denied having purchased jewellery from the petitioner, or having issued, to the petitioner, by the respondent, three cheques of ₹ 7 lakhs, ₹ 5 lakhs and ₹ 5 lakhs respectively.

9. The respondent contended, instead, that she had sold the immovable property to Rajesh Kapoor and Sushma Rani, who were stated to be the associates of the petitioner, against which Rajesh Kapoor paid advance to the respondent of ₹ 7 lakhs. It was further contended that, in order to facilitate the transaction, the respondent handed over the blank cheques to Rajesh Kapoor to cover miscellaneous costs involved in the transactions. These cheques, alleged the respondent, had been misappropriated by the petitioner and misused by it to institute CS DJ 159/2017 against the respondent.

10. The learned ADJ has, vide order dated 3^rd September 2019, granted unconditional leave to the respondent to defend the suit. In

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(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied th