RAJIV KUMAR Vs. KEWAL CARGO CARRIERS P LTD

JUDGEMENT

(1.) The learned Additional District Judge, Delhi vide his common judgment dated 21.1.2004 dismissed all the six suits filed by the plaintiff for want of cause of action, thus, giving rise to the above six appeals. It is not necessary for us to refer to the facts of each of these cases as common questions of fact and law arise for consideration based on similar facts except the amounts claimed in the respective suits. It would suffice to refer to the facts of Suit No. 819/2001 out of which RFA No. 291/2004 has arisen. The plaintiff, a deaf and dumb person, filed a suit through his next friend for recovery of Rs.4,83,852/- under the provisions of Order 37 of the Code of Civil Procedure. According to the appellant, he was inter alia engaged in the business of discounting of cheques in respect of freight or hire of lorries/trucks of the parties concerned on discounting charge basis. The defendant was engaged in the business of transportation of goods inter alia Ex-Bombay to Delhi, Bombay to Amritsar and other stations. As per the understanding between the parties, the discounting of cheques were being carried in the manner that cheques were issued by the respondent towards his liability of freight/hire of the goods so transported by them in favour of the trucks/ lorries drivers/owners etc. The cheques so issued were only with the amount and date written on them. However, the area earmarked for the name on cheques (in favour of or pay to) used to be kept blank for the purposes of discounting of the cheques. Thereafter, the truck/lorry owners used to approach the appellants through his father and representative of the respondent and the name of the appellant was filled in for encashing of the said cheques in favour of the appellant. The appellant in turn used to pay/give cash to the concerned truck owners or drivers, through his father and representative of the respondent, deducting discounting charges thereon from the amount of the cheques being the profit or margin for holding the said cheques of the appellant. After the above transaction used to take place, on the due dates of the cheques, the appellant used to deposit those cheques in his bank account for encashment of the same and get the credits in his bank account. The respondent inter alia issued 22 cheques, the details thereof were given in Annexure P1 to the plaint. 22 cheques were issued initially in the year 1996 and as the respondents were facing financial difficulties, the respondent requested the father of the appellant not to present the cheques for encashment in the bank. However, the period of limitation was expiring in the year 1999. The respondent instead of making the payment of the said cheques, offered to the plaintiff/appellant, through his father to revalidiate the said cheques with the current date but with the request not to deposit the same in his bank account for encashment. The cheques were revalidiated and as per the understanding between the parties they were not presented for encashment. Despite number of oral requests, the respondents did not agree to presentation of the cheques, but at the same time failed and neglected to make the payment. This resulted in issuance of a legal notice dated 28.11.2001 by the appellant to the respondents. The appellant claimed a sum of Rs. 4,83,852/- along with interest @ 24% per annum till payment. Despite legal notice no payment was received and the appellant on the basis of the cheques filed the present suit under the provisions of Order 37 of the Code of Civil Procedure (for short 'the Code'). It was specifically stated in the plaint that no part of 'cause of action' claimed in the plaint falls outside the ambit of the provisions of Order 37 of the Code.

(2.) Upon service, the respondents in the appeal filed an application for leave to defend under Order 37 Rule 3 (5) to contest the suit. In this application, it was stated that the appellant had not disclosed correct facts. It was stated that the suit was not maintainable under the provisions of Order 37 of the Code and no cause of action arises in favour of the appellant and against the respondent for recovery of the amount. It was further stated that there was no privity of contract between the parties and there was no reason for the respondents to issue blank cheques in favour of cargo vehicle owners. The appellants cannot carry on a banking activity and be permitted to circumvent the law without a licence issued by the appropriate authorities. These transactions are stated to be barred under Section 23 of the Indian Contract Act. The fact is admitted that the cheques in question were drawn in the year 1995 but the change of date on the cheques is not in the hands of any of the employees of the defendants, much less in the hands of the signatory of the cheques. The cheques were stale, time-barred and no cause of action arises in favour of the appellant. It is also stated that the cheques were also never presented for payments, either before or after revaluation, as such the suit is not maintainable. The respondents also asked for the proof of consideration and the amounts claimed.

(3.) The application for leave to defend filed by the respondent was contested by the appellant, who filed a detailed reply. While denying all these averments it was stated that the appellant was holder of the cheque and was entitled to the monies prayed for. 3a. This application for leave to defend was accepted by the learned Trial Court stating that the respondent had substantial defence to raise issues like privity of contract between the parties, want of consideration and even the maintainability of the suit, as such the respondents were entitled to leave to defend. While granting leave to the respondent to contest the suit, the Trial Court dismissed the suit of the plaintiff while observing as under: -