Yogesh Mehra v. Amit Aggarwal

RAJIV SAHAI ENDLAW, J. MAY 23, 2016 bs/gsr /pp..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 23rd May, 2016 + RFA 510/2015 YOGESH MEHRA ..... Appellant Through: Mr. Ramit Malhotra, Adv. Versus AMIT AGGARWAL ..... Respondent Through: Mr. Kamlesh Kumar, Mr. Narsh Kumar Bansal and Mr. Anurag Saxena, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment and money decree dated 15th April, 2015 of the Court of the District & Sessions Judge (North), Rohini Courts, Delhi in CS No.43/2014 filed by the respondent/plaintiff under Order XXXVII of CPC, consequent to the dismissal of the application of the appellant/defendant for leave to defend. 2. Notice of the appeal was issued and subject to the appellant/defendant depositing a sum of Rs.5.90 lakhs in this Court, execution was stayed. 3. Upon the appellant/defendant not depositing the amount, vide order dated 6th April, 2016, the order of stay of execution was vacated, the appeal admitted for hearing and posted for today for hearing. On enquiry, it is informed that the execution of the decree is underway. 4. The counsels have been heard and the Trial Court record requisitioned in this Court perused. 5. The respondent/plaintiff instituted the suit from which this appeal arises, pleading: (i) that both, the respondent/plaintiff and the appellant/defendant are engaged in the same business, of financing of used cars and there have been several transactions between them and the appellant/defendant in discharge of his liability towards the respondent/plaintiff issued Cheque No.099331 dated 25th July, 2013 on the account maintained by him with Lok Vihar, New Delhi branch of Axis Bank in favour of the respondent/plaintiff for an amount of Rs.11,80,000/-; (ii) that the said cheque was however, in the month of August, 2013, returned unpaid; (iii) that the appellant/defendant upon being apprised thereof, again promised to pay but thereafter started avoiding the telephone calls of the respondent/plaintiff; (iv) that however the appellant/defendant through SMS from his mobile phone admitted the fact that he had altered the date on the cheque and asked for some time to make the payment; the images taken from the mobile phone of the respondent/plaintiff were annexed to the plaint; (v) that ultimately the respondent/plaintiff got issued a legal notice and in reply whereto the appellant/defendant denied his liability against the cheque. 6. The appellant/defendant sought leave to defend pleading: (a) that the respondent/defendant had tampered and misused the cheque; (b) that the appellant/defendant had given to the respondent/plaintiff the cheque in question on 20th February, 2012 for a sum of Rs.1,80,000/-; (c) that the said cheque was given as security with an understanding that the respondent/plaintiff would return the said cheque, after the payment of the said amount of Rs.1,80,000/-; (d) that however the respondent/plaintiff failed to return the cheque inspite of payment of the entire amount of Rs.1,80,000/- in cash in April, 2012 stating that the same had been mutilated and destroyed; (e) that the appellant/defendant believed and trusted the respondent/plaintiff; (f) that after about one and a half years i.e. from January, 2014, the respondent/plaintiff started harassing the appellant/defendant demanding money, even though the appellant/defendant had no liability; (g) that the respondent/plaintiff in February, 2014 disclosed that the cheque aforesaid had not been mutilated and threatened the appellant/defendant on the basis thereof; (h) that complaints dated 28th February, 2014 and 13th March, 2014 were made by the appellant/defendant in this respect; (i) that the appellant/defendant also made enquiries from his Bank and the Bank vide letter dated 8th March, 2014 informed the appellant/defendant that the cheque for Rs.11,80,000/- had been returned on 26th August, 2013 for the reason of alteration/correction; (j) that it is for this re