CM(M) 985/2022

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$~58 (Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 985/2022 & CM APPL. 40991/2022, CM APPL.

40992/2022, CM APPL. 40993/2022

MAMTA DESAUR & ANR.

..... Petitioners

Through:

Mr. Rajinder Pal Singh, Mr. Gurjit

Singh and Mr. Sahil Goel, Advs.

versus

VIVEK AGGARWAL

..... Respondent

Through:

Mr. Mr. Lokesh Bhola, Adv.

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

J U D G M E N T (ORAL)

%

16.09.2022

1.

The impugned order dated 20^th July 2022, passed by the learned

District Judge (Commercial Court) (the learned Commercial Court), in

CS (Comm) 173/2021 (Vivek Aggarwal v. Mamta Desaur), subjects the

grant of leave to defend, to the petitioner, under Order XXXVII Rule 3(5)

of the Code of Civil Procedure, 1908 (CPC) to a condition of deposit of ₹

9,69,548/- with the court.

2.

The aforesaid requirement of deposit, by the petitioner, of ₹

9,69,548/-, as a condition for grant of leave to defend the suit instituted

by the respondent against the petitioner has been assailed by the

petitioner, under Article 227 of the Constitution of India. The petitioner,

in another words, submits that he is entitled to unconditional leave to

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003721

CM(M) 985/2022

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defend.

3.

A brief recital of facts would be appropriate.

4.

The respondent, as the plaintiff in CS (Comm) 173/2021, claimed

to have been involved in a business relationship with the petitioner since

2012. The plaint asserts that, against purchase orders placed by the

petitioner on the respondent, the petitioner was making timely payments.

However, against goods worth ₹ 10,78,575/-, stated to have been

supplied by the respondent to the petitioner between 2013 and 2015, the

plaint alleged that the petitioner had paid only ₹ 1,09,027/-, and that

several invoices, raised by the respondent, still remained outstanding.

The total amount due from the petitioner as on 21^st January 2015 was

alleged to be ₹ 9,69,548/-.

5.

A cheque, dated 24^th November 2017, for the aforesaid amount of

₹ 9,69,548/-, provided by the petitioner, it was alleged, was dishonoured,

with the comment “account blocked”.

6.

In these circumstances, the respondent, by the aforesaid suit under

Order XXXVII of the CPC, sought recovery, from the petitioner, of ₹

9,69,548/- along with interest, totalling to ₹ 17,65,530/-.

7.

The petitioner, in his application under Order XXXVII Rule 3(5)

for leave to defend the suit, submitted that the cheque was tendered by

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003721

CM(M) 985/2022

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way of a security payment, and was handed over blank to the respondent.

The respondent was alleged to have misused the cheque and filled in the

amount of ₹ 9,69,548/-. It was also alleged that the suit was barred by

time.

8.

Further, the application for leave to defend alleged that the ledger

account of the respondent contained several missing cash entries, which

reflected amounts paid by the petitioner to the respondent in cash.

9.

The essential case that Mr. Rajinder Pal Singh, learned Counsel for

the petitioner, advances is that (i) the amounts due from the petitioner to

the respondent were in fact paid by the petitioner in cash, (ii) these cash

entries had been removed from the ledger of the respondent and the

discrepancy in that regard had been acknowledged by the respondent as

reflected in the impugned order dated 20^th July 2022, (iii) the cheque of ₹

9,69,548/- on which the respondent had premised his suit, was actually

tendered as a blank cheque by the petitioner to the respondent against

certain security payment and was misused by the respondent and (iv) as

all payments due from the petitioner to the respondent having already

been made in cash, there was no occasion for the petitioner to fill in the

said amount in the cheque.

10.

The learned Commercial Court has, in t