AASHRIT EXPORTS Vs. TULSI DASS SHARMA

JUDGEMENT

(1.) The plaintiff has filed this Suit under the provisions of Order XXXVII of the Code of Civil Procedure for recovery of Rs.10,75,000/~ (Rupees Ten lakhs seventy five thousand only). The Suit is based on dishonoured cheque bearing No.247028 dated 10th June. 1999 for Rs.10,00,000/~ drawn on Union Bank of India, Sadar Bazar, Delhi - 110006. It is averred in the plaint that the plaintiff supplied 3200 pieces of Terminator-II T.V. Games of the value of Rs.12,62,368/~ vide bill/delivery challan dated 1 8/05/1999. The defendant had given two cheques to liquidate the liability against the aforesaid supply. One cheque bearing no. 285741 dated 18/05/1999 for Rs.2,60,000/- and the other bearing No.247028 dated 10th June, 1999 for Rs.10,00,000/~. On presentation cheque dated 1 8/05/1999 for Rs.2,60,000/- was returned back dishonoured with the remarks "Drawer's Signature differs". Cheque dated 10/06/1999 for Rs.10,00,000/- was returned dishonoured with the remarks "Payment stopped by the drawer" and "Insufficient funds". The plaintiff made a complaint to D.C.P., Crime Branch, Police Head Quarters, New Delhi and also sent legal notice dated 12/06/1999 under Section 138 of the Negotiable Instruments Act. Before the D.C.P, the defendant paid a sum of Rs.2,60,000/~. Since it is also alleged in the plaint that although the defendant had assured that he will make the balance payment of Rs.10,00,000/- also, as no payment was made the plaintiff initiated proceedings against Section 138 of the Negotiable Instruments Act and also filed the present Suit under the provisions of Order XXXVII of the Code of Civil Procedure.

(2.) The defendant has filed the present IA under Order XXXVII Rule 3(5.) of the Code of Civil Procedure seeking leave to defend the Suit. The main plea taken in this application is that no such payment of Rs.10,00,0007- is due to the plaintiff inasmuch goods worth Rs.10,02,368/- were returned back to the plaintiff as the same were not in working condition and were inferior in quality. Having good business relations with the plaintiff, the defendant did not press for receipt of the returned goods. It is also stated that cheque bearing no.247028 dated 10th June, 1999 for Rs.10,00,000/- was never handed over to the plaintiff. In fact this cheque has been stolen/misplaced and the defendant had made a complaint to this effect to his banker on 28/05/1999 itself.

(3.) The cheque in question which bears the date of 10th June, 1999 therefore could not have been given by the defendant to the plaintiff in view of the aforesaid complaint made to the banker much before i.e. 2 8/05/1999 itself.