Ashok Kumar Tiwari v. Rajesh Kumar Yadav

RAJIV SAHAI ENDLAW, J MAY 06, 2016

'pp' (Corrected and released on 16th June, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th May, 2016 + ASHOK KUMAR TIWARI ..... Appellant Through: Mr. K. N. Jayasankar & Mr. J.L. Joel, Advs. Versus RAJESH KUMAR YADAV ..... Respondent Through: Mr. Amit Kumar, Adv. for R-1 CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 26th November, 2014 of the Court of the Additional District Judge (ADJ)-03, South East, Saket Courts, New Delhi decreeing CS No.306/14 filed by the respondent/plaintiff under Order 37 of the CPC for recovery of Rs.3.10 lacs with pendente lite and future interest at 24% per annum against the appellant/defendant consequent to dismissal of the application filed by the appellant/defendant for leave to defend as barred by time (of one day). 2. The appeal came up before this Court on 20th March, 2015 when the counsel for the respondent/plaintiff being on caveat also appeared. Vide subsequent order dated 7th August, 2015, subject to the appellant/defendant depositing a sum of Rs.1,30,000/- in this Court, execution of the decree was stayed and the trial court record requisitioned. 3. Admit. 4. Considering that in the event of the appeal being allowed, the suit will have to be remanded for decision in accordance with law, with consent, the counsels have been finally heard on appeal. 5. The respondent/plaintiff on 12th May, 2014 instituted the suit from which this appeal arises, pleading (i) that the respondent/plaintiff keeping in view the friendly relations with and the genuine need and requirement of the appellant/defendant, during the period of February, 2010 to April, 2010 advanced a total sum of Rs.3,10,000/- in cash to the appellant/defendant; however no receipt was executed since it was a friendly loan and the appellant/defendant assured to return the loan within a period of one year; (ii) that when the respondent/plaintiff raised a demand, the appellant/defendant in discharge of his liability issued two cheques both dated 10th May, 2011, one for Rs.1,80,000/- and another for Rs.1,30,000/- respectively in favour of the respondent/plaintiff; that the appellant/defendant had assured and promised that the said cheques on presentation would be encashed; (iii) however on presentation the said cheques were dishonoured for the reason of insufficiency of funds in the account of appellant/defendant and the respondent/plaintiff was informed of the said dishonour on 20th May, 2011 and 16th May, 2011 respectively; and, (iv) that the respondent/plaintiff repeatedly called upon the appellant/defendant to make payment but to no avail and ultimately got issued legal notices dated 10th June, 2011 and 8th June, 2011 but the appellant/defendant neither made the payment nor replied. 6. Summons for appearance were issued and upon the appellant/defendant entering appearance, vide order dated 29th August, 2014 summons for judgment were ordered to be issued to the appellant/defendant and the suit adjourned to 16th October, 2014 for report and consideration. On 16th October, 2014, the appellant/defendant appeared in person and filed an application for permission for filing leave to defend. The said application was dismissed observing that it was the right of a defendant to seek leave to defend within the prescribed period and the suit posted for consideration on 17th October, 2014. 7. On 17th October, 2014, the counsel for the appellant/defendant appeared and submitted an application for leave to defend but not supported with detailed affidavit, inter alia on the grounds (i) that he had never taken any loan from the respondent/plaintiff and the cheques were never given against any consideration and were taken by the respondent/plaintiff from the house of the appellant/defendant without his permission and misused; (ii) that the appellant/defendant however owes an amount of Rs.18,000/- to the respondent/plaintiff; (iii) that the suit was time barred;