* HIGH COURT OF DELHI : NEW DELHI
RFA No.147/2009 & CM No.5923/2009
% Judgment reserved on:13th May, 2009
Judgment delivered on:20th May, 2009
M/s. V.K. Enterprises
Through its Proprietor
Shri Pyare Lal
B-4, Jitar Nagar
Delhi-110051 .... Appellant
Through: Mr. Harjinder Singh, Adv.
Versus.
M/s. Shiva Steels
Through its Proprietor
Mr. Jogesh Bansal
Y-255, Loha Mandi, Narayana
New Delhi-110028 ..... Respondent
Through : Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
RFA No.147/2009 & CM No.5923/2009 Page 1 of 9
V.B. GUPTA, J.
Appellant has filed this appeal challenging the
judgment dated 30th September, 2008 passed by
Additional District Judge, Delhi, vide which appellant‟s
leave to defend application, was dismissed and suit of
respondent, was decreed for Rs.6,68,513/- together
with costs and interest pendete lite and future @ 6%
per annum.
2. Facts in brief are that respondent who is the sole
proprietor of his firm, was having business
transactions with the appellant. Appellant had been
purchasing iron sheets on credit basis from the
respondent. A sum of Rs.4,42,724/- became due and
appellant settled the accounts and acknowledged the
liability of this amount. Respondent approached
appellant several times and asked him to pay the
amount. Appellant issued a cheque for sum of
Rs.3,50,000/- dated 11th October, 2006, towards part
payment, which was signed by Sh. Pyare Lal, the sole
proprietor of the appellant‟s firm. On presentation the
RFA No.147/2009 & CM No.5923/2009 Page 2 of 9
same was dishonoured. A legal notice was sent. Since
appellant failed to pay this amount, respondent filed
the present suit under Order 37 Rules 1 & 2 of the
Code of Civil Procedure („for short as „Code‟).
3. Appellant filed an application under Order 37
Rule 3 of the Code, seeking permission to leave to
defend. In the application, appellant stated that
cheque for Rs.3.5 lacs was issued towards security
only and the same was issued by appellant on 11th
October, 2000, but respondent forged the date of the
cheque from 11th October, 2000 to 11th October, 2006,
i.e. after six years and that too after altering the date
of the cheque. Rest of the cheque was blank and
appellant had put the date and signatures on the face
of the cheque for security purpose.
4. It had been admitted by the appellant that he had
been purchasing iron sheets from respondent. Last
payment was made to the respondent for Rs.25,000/-
vide cheque, dated 27th September, 2004. The
RFA No.147/2009 & CM No.5923/2009 Page 3 of 9
appellant owed only Rs.1,18,230/- on 27th September,
2004 and the issues raised are genuine and triable.
5. It has been contended by learned counsel for the
appellant, that cheque in question was forged, since
the date of the cheque has been changed and amount
mentioned in the cheque was towards security only
and not towards any other payment. The case of
respondent is also time barred. Learned counsel for
the appellant in support of his contention cited a
decision of Madras High Court, T.Kalavathy v.
Veera Exports, 2001(2)JCC(HC)37.
6. As per averments made in the application for
leave to defend, appellant had business dealings with
the respondent and appellant owed a sum of
Rs.1,18,230/- on 27th September, 2004. The main
defence of the appellant is that the cheque in question
was issued towards security only and respondent has
forged the date of the cheque from 11th October, 2000
to 11th October, 2006. Rest of the cheque was blank
RFA No.147/2009 & CM No.5923/2009 Page 4 of 9
and appellant had put date and signed on the face of
the cheque for security purpose.
7. In reply to the legal notice, appellant had stated
that the cheque was issued as security and only date
was mentioned on it and other portion of the cheque
was blank.
8. Appellant is taking contradictory stand, as on the
one hand, in application for leave to contest, he states
that date of the cheque was forged and rest of the
cheque was blank, while in the same breath he states
that he had put the date and signatures on the face of
the cheque for the security purpose.
9. On the other hand, in reply to the legal notice,
appellant‟s case is that, only date was mentioned on
the cheque and other portion of cheque was blank.
10. Appellant has nowhere stated either in his leave
application or in reply to the legal notice, that name of
payee of cheque was also forged, nor he has stated
that this cheque does not bear his signatures or his
RFA No.147/2009 & CM No.5923/2009 Page 5 of 9
signatures has been forged. Only plea taken by the
appellant is that, the date mentioned on the cheque
has been altered and forged.
11. Appellant himself has placed on record,
photocopy of the cheque at Page 15 of the paper book.
There is no alteration, overwriting or cutting on the
date of the cheque, which has been mentioned as “11th
October, 2006”.
12. Now coming to the plea taken up by the appellant
that a sum of Rs.3.5 lacs was given towards security.
If Rs.3.5 lacs was given towards security as earlier as
on 11th October, 2000, then it is not clear as to why till
date, the appellant has not asked for refund of this
security amount. Interestingly, in leave application, it
is no where mentioned as in what connection, this
security amount was given. Was there any agreement
to deposit security amount?
13. As per appellant‟s own case, he owed a sum of
Rs.1,18,230/- on 27th September, 2004. There is
RFA No.147/2009 & CM No.5923/2009 Page 6 of 9
nothing on record to show that appellant till date has
paid even this amount to the respondent.
14. Another feature in this case is that, in Para 6 of
application for leave to defend, appellant had taken the
stand, that he always put Roman „X‟ for the month of
October. Para 6 of application reads as under;
“That the defendant always put
roman „X‟ for the October month and
he specifically mentioned the date
11/X/2000 and the plaintiff
altered/forged the date from
11/X/2000 to 11/10/2006.”
15. As per the photocopy of the cheque, the date on
the cheque mentioned is “11/10/2006” and not
“11/X/2000”.
16. The trial court also rejected this defence taken by
the appellant observing;
“Other than mere repudiation of the
liability on the grounds of the cheque
being misused by fabricating the date, no
triable issue has been raised. The
defendants contention that the date on
the cheque has been altered from 2000 to
2006 by manipulating the „0‟ & „6‟ doesRFA No.147/2009 & CM No.5923/2009 Page 7 of 9
not seem to be correct as the circle of „6‟
is smaller than the zeros in the figure of
“2000”. The defence of a blank cheque
given by them also does not entitle them
to escape their liability. The plaintiff has
also relied upon the defendants own
ledger extract, confirming the
transactions and reflecting the balance of
Rs.4,42,724/- due to the plaintiff.”
17. So, from the entire material available on record, I
come to the conclusion that the defence raised by the
appellant in its leave application are sham, most bogus
and frivolous one. The only intention of the appellant
is not to make the payment due, to the respondent.
The case law cited is not at all applicable to the facts of
the present case.
18. Under these circumstances, I do not find any
infirmity or ambiguity in the judgment of the trial
court. The appeal filed by the appellant is most bogus
and frivolous one and the same is hereby dismissed
with costs of Rs.20,000/-.
RFA No.147/2009 & CM No.5923/2009 Page 8 of 9
19. Costs be deposited with the trial court within one
month from today, failing which the trial court shall
recover the same, in accordance with law.
20. Copy of this judgment be sent to trial court.
21. Trial court record be sent back.
V.B.GUPTA, J
May 20, 2009
rb
RFA No.147/2009 & CM No.5923/2009 Page 9 of 9