JUDGMENT
Mukul Mudgal, J.
1. This is an application under Order xxxvII Rule 5 of the Code of Civil Procedure(in short the `CPC’) filed by the defendant No.1.
2. The case of the plaintiff in the suit is for recovery of Rs.58,47,428.00(Rs. Fifty Eight Lacs Forty Seven Thousand Hundred Twenty Eight only with interest). The substratum of this suit is based upon the following averments:-
(a) that the plaintiff is carrying on the business of Non-Ferrous Metal Scraps in Delhi.
(b) that the defendant No.1 with the help of defendants 2 & 3 was also carrying on the same business and used to purchase the same products from the plaintiff for the last about years.
(c) that an agency was sought by the defendants on consignment basis and the plaintiff entered into an agreement with the defendants and defendants M/s Nathu Ram Muni Lal were appointed an agent to sell the commodities of the plaintiff on commission basis.
(d) that the defendants have sold the material which according to the plaintiff is worth of Rs.1,31,20,268/- and have received the price of the said material from the purchaser.
(e) that the defendants remitted a sum of Rs.72,72,840.00(Rs. Seventy Two Lac Seventy Two Thousand Eight Hundred Forty only) and accordingly a balance of Rs.58,47,428/- was due and payable to the plaintiff which was acknowledged by Fax Message dated 28th February, 2000 and letter dated 31st March, 2003 written by defendant No.3.
(f) that a letter dated 31st March, 2000 was also sent by the defendant No.3 to one M/s Jain Metal Alloys, stating that the sum of Rs.6 lacs was to be paid to the plaintiff.
(g) that in spite of issuing sales tax form to the plaintiff firm and dispatching the goods by the defendants, the payment of goods on Invoices bearing No.55 dated 23rd October, 1998; 84 dated 16th December, 1998; 9 dated 19th July, 1999; 15 dated 19th August, 1999; 16 dated 19/8/1999 and 17 dated 19th August, 1999, has not been made.
(h) that these goods were dispatched through Pal Transport Carriers under consignment note Nos.4613 dated 23rd October, 1998, 4833 dated 16th December, 1998, 5822 dated 19th July, 1999; 5806 dated 19th August, 1999, 5807 dated 19th August, 1999 & 5808 dated 19th August, 1999. The sale notes of the goods sold were also issued by the defendant No.1 vide letters dated 16th January, 1999; 19th March, 1999; 27th September, 1999; 29th December, 1999; 22nd October, 1999 & 22nd October, 1999.
(i) that a sum of Rs.58,47,428/- has been duly shown in the statement of accounts, maintained by the plaintiff firm in the name of the defendants.
(j) that in discharge of their liability, the defendant No.1 issued a cheque dated 28th July, 2000 in the sum of Rs.58,47,428/-, in favor of the plaintiff firm, drawn on Canara Bank, Sadar Bazar, Delhi. The said cheque was returned back on 27th November, 2000 by State Bank of India, Sadar Bazar, Delhi with the remark “Insufficient Funds”.
(k) that accordingly a legal notice dated 8th December, 2000 was issued thereof, asking the defendant No.1 to make a payment of Rs.58,47,428.00. Section 138 proceedings under the Negotiable Instrument Act were also initiated against the defendants.
3. The aforesaid averments led to the present suit filed under Order xxxvII CPC based upon the dishonoured cheque dated 28th July, 2000 for a sum of Rs.58,47,428/- which was bounced.
4. Pursuant to the service of summons, prescribed by Order xxxvII CPC and upon service of summons of judgment under Order xxxvII Rule 3(4) CPC by the plaintiff, the defendant No.1 has filed an application, IA 10060/03, seeking leave to defend the suit. The primary contention of defendant No.1/applicant herein is to be found in para No.4(A) of this application:-
“That nothing is due and payable to the plaintiffs as claimed in the suit. The suit has been based on the dishonour of the stolen cheque which has been allegedly dishonoured in November, 2000. The answering defendant had lodged a complaint in the Police for the missing of the alleged cheque Along with others and the intimation of the lodging of the complaint was made to the bank also.”
5. The above averment has been met in the reply filed by the plaintiff to the application for leave to defend by making the following averments:-
“That the contents of para 4(A) of the application are false, frivolous, baseless and misconceived and the same are vehemently denied. It is categorically denied that nothing is due and payable to the plaintiff by the defendants either as alleged or even otherwise. It is further categorically denied that the suit is based on the dishonour of the stolen cheque. It is further denied that the defendant had filed any complaint in the police for the missing cheque and the intimation of the lodging of the complaint was made to the bank also as has been alleged. It is submitted that the allegations made by the defendant No.1 are a mere afterthought the falsity of which has been clearly demonstrated by the police during their investigations as stated in the preliminary objections. The facts stated in the preceding paras of this reply are reiterated herein. Further it is pertinent to note that the non production of the alleged police report Along with the application under reply supports the stand of the plaintiff that such police report and the story of stolen cheque is nothing but sham and bogus.
The contradictory and unbelievable stand being taken by the defendant in the present application has only to be seen to be straightaway rejected. On the one hand the defendant is alleging that the plaintiff has misused cheques which were stolen way back in July, 2000, whereas on the other hand the defendant alleges that he has made payments worth Rs.50,000/- in cash in May, 2001 to the plaintiff i.e. much after the alleged incident. It is inconceivable as to why the defendant would have trusted the plaintiff and made such payments in cash without any receipts in May, 2001, if the plaintiff had misused the stolen cheques which admittedly were dishonoured in November, 2000.”
6. It has also been pleaded in the reply that as far as the lodging of the complaint with the Rewari Police on 5th July, 2000 is concerned, the defendant No.1’s plea regarding the loss of cheque is found to be non-existing in the records of the police station. Even the affidavit filed along with the police report dated 5th July, 2000 is attested by one Mr. M.S. Sharma, Advocate and Notary and police investigations have revealed that the said affidavit was not attested by him and does not bear his signature nor was it so confirmed by the register maintained by him.
7. The learned counsel for the defendants has stated that no such documents in support of these pleas were annexed and accordingly this Court should summon the police records. I am a little surprised at this plea because the averment made in the reply on affidavit have not been rebutted by the applicant/defendant No.1 even though the reply was served as far back as December, 2003. This plea is obviously a plea of desperation and is frivolous and an attempt to delay proceedings. Since the above averments are not rebutted, there is no substance in the plea of the defendant No.1 that the cheques were lost. I am satisfied that the ends of justice will be fully met if the defendant No.1/applicant is directed to deposit the amount covered by the cheque in question as a precondition for leave to defend the suit. The amount covered by the cheque dated 28th July, 2000 for the sum of Rs.58,47,428/- be deposited in this Court within 6 weeks from today. If such amount is deposited leave to defend shall be granted to the defendant.
8. The application for leave to defend stands disposed of accordingly.