RAMESH KUMAR BANSAL Vs. OM PRAKASH NARESH KUMAR

JUDGEMENT

(1.) Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, seeking recovery of Rs. 35,41,150/- against the defendants. The suit is based on dishonor of two cheques bearing No. 057044 & 057045 both dated 23.12.2008 in the sum of Rs. 20,00,000/- & Rs. 11,29,023.52 totaling Rs. 31,29,023.52. As per the plaint, the plaintiff is carrying on its business of sale of rice, food-grains, pulses etc. as merchants and commission agents. The plaintiff is a sole proprietorship concern. Defendants No. 2 and 3 represented to the plaintiff that they are partners of defendant No. 1 and are carrying on business of sale of pulses and allied articles at Jammu. The defendants No. 2 and 3 have been purchasing pulses and allied articles from the plaintiff at Delhi on credit basis in the name of their partnership concern. Similarly the defendants had also been purchasing the pulses and allied articles from other traders of Naya Bazar, Delhi and Lawrence Road, Delhi for which the plaintiff had been giving/extending oral assurance/guarantee for payment by the defendants to such other traders. As per the plaint towards the payment of dues of such other traders of Delhi, the defendants issued certain cheques and handed over the same to the plaintiff for onward delivery thereof to such other traders only after receiving instructions from the defendants. It is the case of the plaintiff that subsequently defendants informed the plaintiff that on account of financial constraint, they would not be able to encash the cheques and requested the plaintiff to make the payments on their behalf to other traders from their own accounts and on behalf of the defendants. The plaintiff acting upon the instructions of the defendants and also with a view to maintain business ethics and reputation and with a view to honour their commitments, made the payments from their own accounts to such other traders on behalf of the defendants. For settling the amount of Rs. 31,29,023.52 including interest upto the 22.12.2008, due and payable by the defendants to the plaintiff, the above said two cheques were issued by the defendants to the plaintiff. These cheques were duly signed by the defendants No. 2 and 3 as partners of defendant No. 1. The aforesaid cheques were dishonored on presentation with the remarks "Funds Insufficient". Copies of the return memos dated 26.12.2008 have been placed on record. Counsel for the plaintiff had also relied upon a legal notice dated 06.01.2009 issued to the defendants, which was duly served upon them. As no reply to the legal notice was received, the plaintiff filed a complaint bearing No. 306/01/09 against the defendants under Sections 138/141/142 of the Negotiable Instruments Act, which is stated to be pending disposal. Strong reliance is placed by counsel for the plaintiff on the communication dated 23.02.2009 wherein according to the plaint the defendants admitted their liability to pay a sum of Rs. 31,29,023.52, as demanded by the plaintiff, however, the defendants pleaded that since they were passing through financial hardship and it was not practically possible for them to make the payments at once, but agreed to make the payments slowly and gradually. As per the promise, the defendants paid a sum of Rs. 1,65,000/- in the following manner: Sl.No. Amount (Rs.) Dated 1. 25,000/- 03.02.2009 2. 25,000/- 04.04.2009 3. 15,000/- 16.05.2009 4. 25,000/- 24.07.2009 5. 25,000/- 29.08.2009 6. 25,000/- 14.10.2009 7. 25,000/- 14.10.2009 TOTAL 1,65,000/-

(2.) In the above circumstances, the plaintiff prays that the application filed by the defendant seeking leave to defend be dismissed and the present suit may be decreed.

(3.) The defendants have filed applications (I.A. No. 16789/2010 & I.A. No. 16790/2010) for leave to defend. As per the defendants, no amount is due and payable to the plaintiffs and it is prayed that unconditional leave to contest the suit may be granted to the defendants.