Chander Pal Singh v. Shripal Singh

judgment reads: "17.1. As noticed, if the Defendant satisfies the Court that he has substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the Defendant raises triable issues indicating a fair or bonafide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the Defendant raises triable issues, but it remains doubtful if the Defendant is raising the same in good faith or about genuineness of the issues, the Trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other.

Therefore, the Trial Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, where the proposed defence appear to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.

17.2. Thus, it could be seen that in the case of substantial defence, the Defendant is entitled to unconditional leave; and even in the case of a triable issue on a fair and reasonable defence, the Defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the Defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the Defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the Court's view that the defence is frivolous or vexatious that the leave to defend is to be refused and the Plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the Plaintiff is admitted by the Defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the Defendant in the Court.

17.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the Rule or that the leave to defend is to be granted only

in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the Defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the Defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious."

¶10A perusal of the above decisions extracted above shows that unconditional leave to defend can be granted by the Court only when a substantial defence is raised by the Defendant. The defence raised in this case does not seem to be plausible. It is worth reiterating that in the present case, the signature on the cheque is admitted by Defendant. The only defence raise by the Defendant is that a blank cheque given by the Defendant has been misappropriated by the Plaintiff. The said defence does not inspire the confidence of the Court and is neither triable nor substantial. It is merely a plea taken to defeat the purpose of the issuance of the cheque itself. The Court enquired from the Ld. Counsel of the Defendant if he would be willing to deposit the entire principal amount. However, the Defendant has expressed inability to deposit the said amount.

¶11Additionally, The Trial Court and the Appellate Court have arrived at a concurrent finding that there is no triable issue in the matter. It is settled law that that in a second appeal, the High Court ought not to interfere with

the concurrent findings of the lower Court unless interference is warranted due to compelling reasons. In C Doddanarayana Reddy (Dead) by LRs & Ors v C Jayarama Reddy (Dead) by LRs & Ors AIR 2020 SC 1912 it has been held by the Supreme Court that: "25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan: (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

¶12This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

¶13In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held: It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal Under Section 100 of the Code in the way he did.

¶14In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held: Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts.... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material. "

¶12Under such circumstances, the suit under Order XXXVII CPC shall be maintainable and it is held that the Defendant has not made out any case for grant of leave to defend.

¶13The appeal is, accordingly, dismissed as no substantial questions of law arise in this appeal. The miscellaneous pending applications are also disposed of.

PRATHIBA M. SINGH JUDGE FEBRUARY 17, 2022/dk/sk (corrected & released on 21st February, 2022)

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 17th February, 2022 + RSA 20/2022 & CM APPLs.8771-72/2022 CHANDER PAL SINGH ..... Appellant Through: Mr. Madan Lal Kalkal, Advocate. versus SHRIPAL SINGH ..... Respondent Through: None. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. This hearing has been done through video conferencing. 2. The present second appeal has been filed challenging the impugned judgment/decree dated 4th January, 2022 in RCA No. 29/2020 titled Chander Pal Singh v. Shripal Singh passed by the Ld. ADJ-01 (East) KKD/Delhi (hereinafter "Appellate Court"). Vide the said order, the appeal against the judgment/decree dated 17th August, 2020 in Suit No. 670/2019 titled Shri Pal Singh v. Chandra Pal Singh passed by the CJ/East/KKD (hereinafter "Trial Court") has been dismissed. 3. The background of the case is that a summary suit seeking recovery of Rs.2 lakhs along with interest was filed by the Respondent/Plaintiff (hereinafter "Plaintiff") before the Trial Court. The said suit under Order XXXVII CPC was based on a cheque of Rs.2 lakhs bearing no.812818 dated 29th October, 2016 which was stated to have been given in repayment of a friendly loan given by the Plaintiff to the Appellant/Defendant (hereinafter "Defendant"). In the leave to defend application, the Defendant claimed that the signatures on the cheque are admitted, however, the said cheque was blank when it was issued to one Mr. Prem Singh who is the brother of the Plaintiff. Mr. Madan, ld. Counsel for the Defendant, submits that there is no privity of contract between the Defendant and the Plaintiff whatsoever. However, the Trial Court has held that the cheque was issued by the Defendant and held that there is no triable issue which has arisen in the present suit. The Appellate Court has also agreed with the said finding. 4. Ld. counsel for the Defendant further submits that there is a substantial question of law that arises in the present case. He submits that the brother of the Plaintiff was running a chit fund business and the amount, which was to be paid to him by the Defendant, was Rs.50,000/- only. Ld. counsel for the Defendant submits that for the said purpose, a blank cheque was issued by the Defendant. 5. This Court has heard counsel for the Defendant. 6. The first and the foremost important issue in the case is that the signature on the cheque is admitted. However, it is then argued that the drawee's name and amount etc., were left blank and was misused by the Plaintiff's brother. In this modern age, it is not acceptable that anybody would issue a signed blank cheque, that too with the name and amount being left blank. It is normal practice dictated by prudence, that when cheques are issued, name and amounts are filled, as there is always an apprehension of misuse. Contention of ld. Counsel for the Defendant, that the cheque was issued blank, simply with signatures is not acceptable to this Court. If such a plea is accepted, in each and every case relating to a financial instrument such as a cheque a plea can be taken that the same was a blank cheque which was only signed so that the suit goes into the vortex of delays. A criminal complaint is stated to have been filed in February 2017 relating to misuse of the cheque. However, it is relevant to point out that such a complaint was filed only after the legal notice was issued by the Plaintiff. This is also not usual conduct. If a cheque book is lost or if there is a fear of misuse of a cheque, the normal conduct in financial transactions would be to file a complaint immediately and not wait for receipt of a legal notice qua dishonouring of the cheque. 7. Simply because the Defendant is arguing that there is no privity between the parties would not mean that the same has to be accepted by the Court. A cheque is a monetary instrument and it is expected that a person who deals with a cheque and cheque books, would deal with them responsibly. The Calcutta High Court