CS(OS)2254/2013 Page 1 of 12

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS(OS) 2254/2013

MAYA JAIN

..... Plaintiff

Through:

Mr. R. K. Rathore and Mr.Vijay

Gupta, Advs.

versus

YASH CHHABRA

..... Defendant

Through:

Mr. Kush Chaturvedi, Adv.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.10525/2014 (for leave to defend)

1.

This is an application under Order 37 Rule 3 (5) of the CPC seeking

leave to defend the suit. The plaintiff has filed the present suit for recovery

of Rs.59,85,000/-. It is averred in the plaint that the defendant is well known

and acquainted with the plaintiff having business association with her

husband. The plaintiff agreed to give a “dasti” loan of Rs.45 lacs to the

defendant on 20.01.2011. The defendant acknowledged having received the

said sum of Rs.45 lacs in cash vide receipt dated 20.01.2011. The defendant

is stated to have handed over an original signed receipt to the plaintiff with

two cheques dated 1.2.2012 for Rs.22,00,000/- and Rs.23,00,000/-

respectively drawn on Corporation Bank, Noida to enable the plaintiff to

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CS(OS)2254/2013 Page 2 of 12

realise the sum on the stipulated date. Based on these documents the present

suit is filed under Order 37 CPC. Interest @12% per annum w.e.f.

21.01.2011 till date of filing of the suit is also sought.

2.

In the application filed for leave to defend the defendant has raised

the following defences :-

(a) It is averred that this Court lacks territorial jurisdiction as the receipt

relied upon by the plaintiff is executed in Noida, U.P. The cheques stated to

have been handed over by defendants were also handed over in Noida drawn

on a branch in Noida. Hence, it is stated that no part of the cause of action

has arisen in Delhi and hence this Court has no territorial jurisdiction.

(b)It is further stated that the plaintiffs have approached this Court with

unclean hands. The receipt dated 20.01.2011 is said to have been obtained

by fraud and misrepresentation. It is averred that the loan amount was to be

transferred through RTGS/NEFT from the account of the plaintiff. The

plaintiff insisted that before the same is transferred the defendant should

issue cheques as security and pressurised the defendant into issuing the

same. The plaintiff it is stated has failed to transfer the money to the

defendant through RTGS or NEFT. Hence, it is urged that the receipt was

obtained fraudulently. The defendant has placed on record his IT Returns

and the bank statements for the relevant period to support the contention that

no payment has been received by the defendant.

(c) It is further stated that the receipt is signed by the defendant (Mr. Yash

Chhabra) while the alleged cheque is signed by Mr. Yash Chhabra in the

capacity of a Director of M/s.Sanya Fibre Private Limited. The cheque is

issued by M/s.Sanya Fibre Private Limited. Thus, the receipt is signed by a

different entity and the cheque is signed by a different entity.

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(d) Learned counsel for the defendant has further averred that the two

cheques on the basis of which the present suit under Order 37 CPC is

purported to be filed cannot be the foundation for a suit under Order 37

CPC. He relies on judgments of this Court in the case of First Lucre

Partnership Co. vs. Abhinandan Jain,202 (2013) DLT 177 and of the

Division Bench in Bal Dev Singhvs.Rare Fuel and Automobiles

Technologies (P) Ltd., 119 (2005) DLT 44 to contend that in this regard the

settled legal position is that the cheques which are not presented for payment

cannot be the basis of a suit under Order 37 CPC.

3.

Learned counsel appearing for the pla